THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


''^ 


LOsAnscles.  ' 


^w^ 


LEGAL     AND     POLiTlCAL 


HERMENEl  TICS 


LEGAL  AND  POLITICAL  HERMENEUTICS, 


OR      PRINCIPLES 


OF  INTERPRETATION  AND  CONSTRUCTION 


IN  LAW  AND  POLITICS, 


WITH       REMARKS 


ON  PRECEDENTS  AND  AUTHORITIES. 


ENLARGED    EDITION. 


BY    FRANCIS    LIEBER 


BOSTON: 

CHARLES    C.     LITTLE    AND    JAMES     BROWN. 
MDCCCXXXIX. 

If   -i  T 


If  39 


TO  THE  HOiNORABLE 


JAMES  KENT,  LL.  D., 


RESPECTFULLY    INSCRIBED. 

BY  THE  AUTHOR. 


S.  N.  DiskifiEon.  Phuier. 


Entered  ciccording-  to  Act  of  Congress,  in  the  year  1839,  by 

Francis     Lieber, 

In  the  Clerk's  Office  of  the  Diitnct  Court  of  the  District  of  Massachusetts. 


<  Dear  Sir, 


Your  name  placed  at  the  head  of  so  small  a  work, 
may  appear,  to  many  readers,  not  unlike  a  noble  front 
of  granite,  which  hides  but  a  common  brick  building, 
and  deceives  the  unobserving  passer-by.  But  the 
very  fact  that  I  was  bold  enough  to  grace  so  insigniii- 
cant  a  book  with  your  name,  must  plead  for  me  ;  for 
it  will  show,  at  least,  how  anxious  I  was  to  express 
my  deep  respect  for  your  labors,  and  my  sincere 
thanks  for  your  indulgence  towards  mine.  May  the 
additions  I  have  made  to  the  Hermeneutics  not  induce 
you  to  change  the  opinion  which  you  were  kindly 
disposed  to  take  of  the  first  edition. 
I  am, 

Dear  Sir, 

Your  respectful  servant, 

FRANCIS  LIEBER. 


# 


135  "^^X 


P  R  E  F  A  C  E 


One  of  t\\e  first  articles,  wliich  I  read  after  my 
landing  at  New  York,  now  nearly  twelve  years  ago, 
was  in  a  paper  opposed  to  the  administration  of  Mr. 
Adams.  The  construction  of  the  constitution  formed 
one  of  the  points  on  which  the  writer  founded  his 
oLjections  to  the  president  and  his  party.  The  sub- 
ject, as  a  distinction  of  political  men  and  measures, 
was  new  to  me,  as  political  construction  in  this  aspect, 
is  peculiarly  American  ;  for,  here,  the  idea  o(  written 
constitutions,  of  which  it  is  a  consequence,  was  first 
realized  permanently  and  on  a  large  scale,  although 
they  have  existed  at  earlier  dates.  My  attention  was 
naturally  attracted  by  this  subject,  and  the  more 
attention  I  paid  to  the  whole  political  system,  in  which 
I  have  lived  ever  since,  the  more  important  it  appeared 
to  me,  not,  indeed,  as  a  matter  of  curiosity,  but  one 
Avhich  involves  the  gravest  interests  of  right.  V/hen, 
however,  the  idea  of  trying  to  reduce  upon  ethic 
principles    that    which   yet   appears  so   unsettled  in 


PREFACE.  Vn 

practical  municipal  politics,,  and  to  find  some  firm  and 
solid  fo\mdations  of  right  and  morality,  in  the  rolling 
tides  of  party  actions,  was  gradually  matured  in  my 
mind  ;  when  I  finally  concluded  to  imdertake  a  work 
on  Political  Ethics,  I  was  naturally  led  to  reflect  more 
thoroughly  on  Construction,  and  to  arrange  my  thoughts 
in  systematic  order.  For  it  seems  evident  that  math- 
ematics alone  can  wholly  dispense  with  interpretation 
and  construction  of  some  sort,  while,  on  the  other 
hand,  without  good  faith  they  become  desperate 
weapons  in  the  hands  of  the  disingenuous.  They 
form,  therefore,  a  subject  which  clearly  appertains  to 
legal  and  political  morals.  But  when  I  came  to  write 
down  my  observations  in  their  proper  connexion,  I 
found  that  they  extended  much  beyond  the  limits 
which  could  be  fairly  allowed  to  a  single  chapter,  nor 
did  the  crowd  of  subjects  admit  of  more  than  one 
being  occupied  by  this  specific  one.  They  were  pub- 
lished in  the  American  Jurist,*  after  which  I  thought 
I  might,  perhaps,  succeed,  in  pruning  them  to  a  more 
proportionate  size  for  the  then  projected  and  now  half 
published  work.  I  was  told,  however,  that  the  article 
had  found  favor  with  the  readers  of  the  Jurist,  and 
that  a  reduction  would  materially  injure  it,  while  I 
was  called  upon  by  several  professional  gentlemen  of 
eminence,  to  publish  the  article  separately.  I  followed 
their  advice,  the  more   readily  as   I   was  desirous   of 

*  October  ikuraberof  1837,  and  January  number  of  1838 


\'m  PREFACE. 

adding  some  remarks,  which  appear  to  me  of  sufficient 
importance,  to  enlarge  the  chapter  on  precedents,  and 
to  add  a  new  one  on  authorities.  I  have  re-written 
the  whole,  as  a  superficial  comparison  will  show,  and 
here  lay  the  result  of  my  labors  before  the  reader. 
May  it  do  some  good.  Whether  I  have  succeeded  or 
not,  I  believe  it  will  be  granted  on  all  hands,  that  the 
subject  is  a  very  important  one,  and  that  in  coun- 
tries, as  the  United  States  and  England,  in  which 
civil  liberty  teaches  the  citizen  to  look  for  one  of  its 
great  protections  in  the  exact  administration  of  the 
laws,  and  a  careful  avoidance  of  constant  explanation, 
not  interpretation,  of  the  laws  by  the  Public  Power — 
in  countries,  in  which  the  law  is  allowed  to  make  its 
own  way,  immutable  principles  and  fixed  rules  for 
interpreting  and  construing  them,  should  be  generally 
acknowledged,  or  if  they  exist  already,  in  a  scattered 
state,  should  be  gathered  and  clearly  represented,  so 
that  the)'-  may  establish  themselves  along  with  the 
laws,  as  part  and  branch  of  the  common  law  of  free 
countries. 

January  1,  1839. 


CONTENTS. 


CHAPTER  I. 

No  direct  communion  between  the  Minds  of  Men ;  Signs  are 
necessary. — What  Signs  are. — Utterance. — Various  Signs 
used  to  convey  Ideas. — Interpretation  ;  its  definition. — Ety- 
mology of  the  word. — Interpretation  is  not  arbitrary,  but 
ought  to  proceed  by  rules. — Words;  what  they  arc. — Words 
most  common  Signs  of  Communion  between  Men. — Inter- 
pretation of  Words. — Text. — Utterer 13 

CHAPTER  II, 

Ambiguity  of  Human  Speech. — Processes  of  Formation  of 
Words. — Necessity  of  always  leaving  much  to  be  understood 
by  Interpretation. — Not  to  be  avoided  by  Specification  and 
Amplification. — Causes  of  Ambiguity  in  the  Language,  the 
Utterer,  the  Change  of  Circumstances. — Desire  of  avoiding 
different  Interpretation. —  Prohibition  of  Commentaries. — 
Napoleon's  View. — Interpretation  cannot  be  dispensed  with. — 
Civil  Liberty  demands  Independence  of  the  Judiciary,  of  the 
Law.— Correct  Interpretation  more  necessary  in  free  Countries 
than  in  Slates  not  free 25 


CONTENTS. 


CHAPTER  III. 


Construction. — Its  Definition. — Twofold  Application  of  this 
Definition. — Necessity  of  Construction,  when  Interpretation 
ceases  to  avail. — Necessity  of  distinguishing  between  Inter- 
pretation and  Construction. — Instance. — Doctrine  of  Cy-pres. 
Science  of  Hermeneutics. — Derivation  of  the  word. — Con- 
struction, although  dangerous,  yet  indispensable. — Different 
Species  of  Interpretation,  to  arrive  at  the  True  Sense. — Close 
interpretation. — Literal  Interpretation  is  an  inadmissible 
Term. — Instances  of  pretended  Literal  Interpretation. — Ex- 
tensive Interpretation. — Liberal  Interpretation  not  a  good 
Term. — Extravagant  Interpretation. — Limited  and  Free  In- 
terpretation.— Predestined  Interpretation. — Artful  Interpreta- 
tion.— Authentic  Interpretation. — Different  Species  of  Theo- 
logic  Interpretation. — Close,  Comprehensive,  Transcendent, 
Extravagant  Construction. — Indemnity  Bills.. .55 

CHAPTER  IV. 

Principles  of  sound  Interpretation. —  Geriuineness  of  the  Text. 
Falsified  Texts  in  tl>e  highest  as  the  lowest  Spheres. — No 
Sentence  of  Words  can  have  more  than  one  True  Sense.  — 
Double  Interpretation  is  false  Interpretation.  —  Good  Faith 
and  Common  Sense  the  leading  Stars  of  all  Genuine  Inter- 
pretation. —  Moral  Obligation  of  I^egal  Counsel.  —  Lord 
Brougham's  Opinion.  —  What  Good  Faith  is  in  Interpreta- 
tion. —  Peculiar  Circumstances  which  may  make  Subterfuges 
laudable.  —  Literal  Interpretation  an  ever  ready  means  of 
Tyranny —  Political  ShufRing. —  Words  to  be  taken  in  their 
most  probable  sense.  —  Usus  Loquendi.  —  To  what  it  may  re- 
late. —  Rules  to  ascertain  the  Meaning  of  doubtful  Words. — 
'  Contemporaneaexpositioest  fortissimain  Lege.'  —  Instances. 
Technical  Terms  to  be  taken  in  their  technical  sense. — That 
which  is  inferior  cannot  defeat  that  which  is  superior.  —  The 
Text  itself  must  furnish,  if  possible,  the  means  of  interpreting 


CONTENTS.  XI 

its  own  doubtful  Words.  —  High  Considerations  on  account 
of  which  we  have  to  abandon  Interpretation. —  Case  of  Lord 
Bentink's  Order  in  Council,  abolishing  Whipping  of  native 
Indian  Soldiers,  and  a  Sepoy  and  Drummer  being  lashed,  be- 
cause, having  become  a  Christian,  he  was  not  entitled  to  the 
Privilege  of  Natives.  —  Care  of  Sir  Thomas  Parkyne.  — 
Recapitulation  of  the  Principles  of  Interpretation 83 

CHAPTER  V. 

Construction  is  unavoidable. —  The  Causes  why. — Instances. — 
Analogy  or  Parallelism  the  main  Guide  in  Construing. — Rules 
of  Construing.  —  We  begin  with  that  which  is  near.  —  Aim 
and  Object  of  the  Text.  —  Preambles  of  Laws.  —  Shall  the 
Motives  of  the  Utterer  guide  us  ?  —  How  far  ? — '  Lex  Nemi- 
nem  cogit  ad  Impossibilia  ' —  Texts  conferring  Privileges.  — 
Close  construction  necessary  in  construing  Contracts.  —  Con- 
struction of  Promises  and  Obligations.  —  Maximum  and  Min- 
imum —  That  which  agrees  most  with  the  Spirit  and  Tenor 
of  the  Text  is  preferable.  —  Effects  and  Consequences  of  the 
Construction  may  guide  us. —  Blackstone. — Antiquity  of  Law 
makes  frequently  extensive  Construction  necessary.  —  Habit- 
ual close  Interpretation  and  Construction  favorable  to  Civil 
Liberty. —  Words  of  a  relative  or  generic  Meaning  to  be  taken 
in  a  relative  or  expansive  Sense.  —  Rules  respecting  this 
Point  — The  Weak  have  the  Benefit  of  Doubt. —The  Supe- 
rior Object  cannot  be  defeated  hy  the  Inferior.  —  Recapitula- 
tion of  the  Principles  of  Construction 121 

CHAPTER  VI. 

Hermeneutic  Rules  respecting  Detached  spoken  Words  or  Sen- 
tences. —  Conversation.  —  Hearsay.  —  In  judicial  Procedures. 
Letters,  Journals,  Private  Notes.  —  Speeches.  —  Pamphlets. — 
Orders,  Directions,  &c.  of  a  passing  Nature. —  Contracts, 
Deeds,  Wills,  &c.  —  Laws  must  at  times  be  interpreted  or 
construed.  —  Hermeneutic  Rules  respecting  Laws.  —  Consti- 


XU  CONTENTS. 

tutions.  —  Constitutions  are  Laws  and  Guarantees.  —  Various 
Constitutions.  —  Rules  of  Constitutional  Hermeneutics. — The 
Veto  and  pardoning  Privilege.  —  International  Treaties..  .145 

CHAPTER  VII. 

Precedents. — Definition. — Natural  Power  of  Precedents. — Pow- 
er of  Precedent  in  England. — Reasons  of  the  Powerful  Influ- 
ence of  Precedents. — '  Wisdom  of  our  Forefathers.' — Lineal 
Assent,  Contemporary  Assent. — Great  Force,  for  Good  or  Evil., 
of  Precedents  in  Politics. — Reasons. — Distinction  between 
Legal  and  Political  Precedents. —  Precedents  of  a  mixed  Char- 
acter.— Precedents  necessary  for  the  Development  of  Law 
for  Civil  Liberty. — They  settle  the  Knowledge  of  what  is 
Law. — Necessary  Qualities  of  sound  Legal  Precedents. — Ex- 
ecutive Acts  are  no  Precedents,  except  for  subordinate  Officers 
if  not  against  Law. — Fearful  Instance  of  E.xecutive  Precedent 
ja  the  History  of  the  Star  Chamber. — No  Man  shall  take  ad- 
vantage of  his  own  Wrong. — Sound  Precedents. — Precedents 
must  be  taken  with  all  their  Adjuncts. — No  Precedent  weighs 
against  Law  and  Right. — Still  less  against  Reason. — Prece- 
dents must  not  increase  Public  Power. — Precedents  must 
settle, not  unsettle.— Precedents  may  be  overruled  if  necessary. 
The  greatest  Lawyers  have  done  so,  for  instance,  Lord  Coke. 

19a 

CHAPTER  VIII. 

Authorities. — Akin  to  Precedents. — Definition. — Ought  we  to 
submit  to  them  ? — Slavish  Submission  to  them  ;  Arrant  Dis- 
regard of  them. — We  must  always  adopt  Authorities  in  many 
Branches. — Main  Questions  of  Historic  Criticism. — Similar 
ones  regarding  Autliorities. — Who  is  he  .' — What  opportunity 
had  he  to  know  the  Subject .' — What  Motive  prompted  him  •* 
What  internal  Evidence  is  there  .'—Of  what  Extent  is  the 
Authority  ?— Various  Phases  of  the  same  Authority.— Classi- 
cal Periods , 223 


CHAPTER  L 


No  direct  communion  between  the  Minds  of  Men;  Signs  are 
necessary.  —  What  Signs  are.  —  Utterance.  —  Various  Signs 
used  to  convey  Ideas.  —  Interpretation  ;  its  definition.  — 
Etymology  of  the  word.  Interpretation  is  not  arbitrary,  but 
ought  to  proceed  by  rules. — Words ;  what  they  are.  —  Words 
most  common  Signs  of  Communion  between  Men.  —  Inter- 
pretation of  Words.  —  Text.  —  Utterer. 

I.  There  is  no  direct  communion  between  the 
minds  of  men  ;  whatever  thoughts,  emotions,  con- 
ceptions, ideas  of  dehght  or  sufferance  we  feel  urged 
to  impart  to  other  individuals,  we  cannot  obtain  our 
object  without  resorting  to  the  outward  manifestation 
of  that  which  moves  us  inwardly,  that  is,  to  signs. 
There  is  no  immediate  communion  between  the  minds 
of  individuals,  as  long  as  we  are  on  this  earth,  without 
signs,  that  is,  expressions  perceptible  by  the  senses^ 
The  most  thrilling  emotions  of  a  mother's  heart, 
watching  over  a  suffering  child,  the  most  abstract 
meditation  of  the  philosopher,  the  sublimest  concep- 
tion of  the  poet,  or  the  most  faithful  devotion  of  a 
2 


14  HERMENEUTICS. 

martyr  in  a  pure  and  noble  cause,  can  no  more  be 
perceived  by  others  or  communicated  to  them  with- 
out signs  or  manifestations,  than  the  most  common 
desires  of  daily  intercourse,  or  our  physical  wants 
for  sustenance  or  protection. 

II.  Signs,  in  this  most  comprehensive  sense, 
would  include  all  manifestations  of  the  inward  man, 
and  extend  as  well  to  the  deeds  performed  by  an 
individual,  inasmuch  as  they  enable  us  to  understand 
his  plans  and  motives,  as  to  those  signs  used  for  the 
sole  purpose  of  expressing  some  ideas  ;  in  other 
words,  the  term  would  include  all  marks,  intentional 
or  unintentional,  by  which  one  individual  may  under- 
.stand  the  mind  or  the  whole  disposition  of  another, 
as  well  as  those  which  express  a  single  idea  or  emo- 
tion ;  for  instance,  the  look  of  tenderness  or  tear  of 
compassion,  as  well  as  the  mile  stone  on  the  road, 
or  the  skull  and  cross  bones  painted  on  a  vessel 
which  contains  deadly  poison. 

There  is  a  primeval  principle  in  man,  which  ever 
urges  him  with  irresistible  power  to  represent  out- 
wardly what  moves  him  strongly  within,  a  pressing 
urgency  of  utterance,  so  that  men,  through  all  the 
many  spheres  of  life  and  action,  feel  a  want  of  man- 
ifesting without,  that  which  stirs  their  mind  or  heart, 
even  though  there  be  no  direct  object  which  they 


CHAPTER     I. SECTION    II.  15 

consciously  desire  to  obtain  by  this  manifestation. 
The  anxious  desire  of  utterance  is  independent  of 
any  principle  of  utility,  that  is,  of  the  conscious 
desire  of  obtaining  a  certain  end  by  the  manifestation 
of  our  inward  state.  A  victory  is  gained;  the  peo- 
ple rejoice  at  it ;  they  illuminate  their  houses,  and 
light  bonfires.  It  may  be  far  in  the  interior,  at  a 
great  distance  from  the  enemy.  They  neither  do 
it,  to  taunt  the  hostile  armies,  nor  peculiarly  to  honor 
the  victors.  They  do  it,  because  their  minds  and 
souls  are  in  a  state  of  triumph  and  rejoicing,  and 
they  cannot  resist  expressing  it.  A  temple  is  to  be 
built  for  the  reception  of  those  who  feel  a  wish 
to  adore  their  God.  The  building  is  planned  and 
executed  in  a  nobler  style  than  the  ordinary  dwell- 
ings of  men,  not  to  flatter  the  deity  or  to  honor  the 
Most  High,  for  the  fabric  may  be  building  by  those 
whose  religion  teaches  them  that  He  cannot  be 
flattered  by  men,  that  his  honor  does  not  depend 
upon  frail  mortals,  but  because  their  mind,  in  erect- 
ing a  church  is  in  a  different  frame  from  what  it  is, 
when  they  build  a  cottage,  and  they  feel  urged  to 
manifest  it  accordingly.  Man  dresses  difFerendy  for 
a  gay  feast,  than  for  a  funeral  of  his  departed  friend- 
IMan  might  sleep  on  straw  as  his  domestic  animals  do, 
and  soundly  and  healthily  loo,  but  he  has  an  innate 
love  of  the  beautiful,  and  it  urges  him  to  surround. 


16  HERMENEUTICS. 

himself  with  tasteful  furniture,  even,  not  unfrequenily 
against  the  dictates  of  mere  utility ;  although  I 
would  observe,  passingly,  that  this  innate  love  of  the 
beautiful,  which  in  some  stage  of  development,  we 
find  with  all  men,  and  with  no  animal,  is  one  of  the 
broad  foundations  of  all  industry,  but  not  consciously 
made  so  by  reflecting  utilitarianism  or,  as  it  is  termed 
by  others,  enlightened  self-interest ;  another  mind, 
and  a  deeper  wisdom  than  human  intellect  is  capa- 
ble of,  has  made  this  one  oft  he  first  and  indestructi- 
ble foundations  of  civilization. 

One  more  remark  respecting  this  subject,  and  1 
shall  turn  to  what  more  directly  occupies  us.  1 
have  endeavored,  in  another  work,^  to  show  how 
indispensably  man's  individuality  is  connected  with 
his  morality.  Had  the  Creator  established  a  means 
of  direct  influence  of  mind  upon  mind  among  men, 
such  for  instance  as  the  adherents  to  the  theory  of 
animal  magnetism  pretend  to  have  found,  it  would 
seem  that  this  individuality  would  be  greatly  im- 
paired, perhaps  totally  destroyed.  Yet  it  was  the 
evident  plan  of  our  Maker,  to  link  man  to  man,  to 
lead  him  to  society,  and  lead  this  society  from  stage 
to  stage.  Absolute  individuality  or  utterance  re- 
stricted for  the  purpose  of  utility,  would  have 
fettered    man   in   the    lowest    bondage    of    sordi<;! 

(1)  Political  Ethics,  vol.  1,  book  1. 


CHAPTER     I. SECTION     HI.,    IV.  17 

egotism;  and  God  may  have  impressed  that 
urgency  of  manifestation  indelibly  upon  the  human 
soul,  as  one  of  the  chiefest  means  of  sociability, 
civilization  and  elevation.  For  nearly  all  that  is 
choicest  in  mankind  is  owing  iBrst  of  all  to  this 
irresistible  anxiety  of  manifestation. 

III.  The  signs  which  man  uses,  the  using  of 
which  implies  intention,  for  the  purpose  of  convey- 
ing ideas  or  notions  to  his  fellow-creatures,  are  very 
various,  for  instance,  gestures,  signals,  telegraphs, 
monuments,  sculptures  of  all  kinds,  pictorial  and 
hieroglyphic  signs,  the  stamp  on  coins,  seals, 
beacons,  buoys,  insignia,  ejaculations,  articulate 
sounds,  or  their  representations,  that  is  phonetic 
characters  on  stones,  wood,  leaves,  paper,  &;c., 
entire  periods,  or  single  words,  such  as  names  in  a 
particular  place,  and  whatever  other  signs,  even  the 
flowers  in  the  flower  language  of  the  East,  might  be 
enumerated. 

IV.  These  signs  then  are  used  to  convey  certain 
ideas,  and  interpretation,  in  its  widest  meaning,  is 
the  discovery  and  representation  of  the  true  mean- 
ing of  any  signs,  used  to  convey  ideas. 

The  '  true  meaning '  of  any  signs  is  that  meaning 
which  those  who  used  them   were   desirous  of  ex 
pressing.     (See  sect,  vii.) 
2* 


18  HERMENEUTICS. 

'  Using  signs '  does  not  only  signify  the  origina- 
tion of  their  combination  in  a  given  case,  but  also 
the  declared  or  well  understood  adoption  or  sanction 
of  them,  wherever  there  are  several  parties,  who 
endeavor  to  express  their  ideas  by  the  same  com- 
bination of  signs. 

In  the  case  of  a  compact,  for  instance,  treaty, 
contract,  or  any  act  of  the  nature  of  an  agreement, 
the  party,  who  avowedly  adopts  the  contract,  treaty, 
&.C.,  or  gives  his  tacit  assent  to  it,  makes  as  much 
use  of  the  signs  declaratory  of  the  agreement,  as 
the  party  who  originated  them.  Forced  silence,  or 
the  impossibility  of  expressing  dissent,  is,  of  course 
not  comprehended  within  the  term  '  tacit  assent.' 
The  ancient  rule  in  law,  therefore,  that :  '  qui  tacet 
consentire  videtur,'  is  correct,  provided  we  give  the 
proper  meaning  to  the  term  '  videtur.'  It  has  been 
justly  amplified  thus  :  '  Qui  tacet  verbo  et  facto,  ubi 
obloqui  vel  resistere  potest  ac  debet,  consentire 
videtur.'^  If  a  person  is  deceived,  his  silence  is  of 
course  not  consent,  nor  is  it  such  if  he  that  has 
power,  first  prohibits  all  contradiction,  and  after- 
wards construes  silence  into  assent,  a  case  which 
has  repeatedly  occurred  in  history. 


(1)  Krug,  Professor  of  Pliilosophy  in  the  University  at  Leip- 
zig, in  his  Pliilosophy  of  Law,  (Rechtslehre.) 


CHAPTER     I. SECTION     V.  19 


V.  All  the  signs,  enumerated  in  section  iv.  re- 
quire interpretation,  that  is,  it  is  necessary  for  him, 
for  whose  benefit  they  are  intended,  to  find  out, 
what  those  persons  who  used  the  sign,  intend  to 
convey  to  the  mind  of  the  beholder  or  hearer. 
Thus,  some  beacons  signify  to  the  approaching 
mariner  that  there  is  great  danger  in  their  vicinity ; 
others  indicate,  by  their  guiding  light,  the  safest 
passage  into  a  port.  If  the  mariner  does  not  know 
how  to  interpret  these  signs,  he  will  attach  a  wrong 
meaning  to  them,  or  be  at  a  loss  what  meaning  they 
have.  Thus,  likewise,  have  the  historian  and  anti- 
quarian to  interpret  inscriptions  on  medals,  and  not 
only  the  words  they  may  contain,  but  also  certain 
emblems,  representations  of  animals  or  things. 
Pictures  must  be  likewise  interpreted,  for  instance, 
those  which  are  found  on  the  walls  of  Egyptian 
temples ;  that  is  to  say,  it  is  one  of  the  occupations 
of  the  historian  and  antiquarian  to  find  out  the 
meaning  of  these  various  representations,  i.  e.  the 
ideas  which  he  who  made  them  (or  ordered  them  to 
be  made)  intended  to  convey  to  the  beholder. 

If  we  believe  that  one  of  the  objects  of  God,  in 
creating  the  world,  was  to  manifest  his  wisdom  and 
goodness  to  man,  the  expression  of  interpreting 
nature  is  correct.     By  interpreting  the  actions  of  a 


20  HERMENEUTICS. 

man,^  we  mean  to  designate  the  endeavor  to  arrive 
at  their  direct  meaning,  the  motives  from  which  they 
flowed,  by  construing  his  actions,  we  rather  indicate 
an  endeavor  of  arriving  at  conchisions  with  refer- 
ence to  the  whole  character  of  the  acting  individual 
or  at  least  at  something,  which  lies  beyond  the 
nearest  motives^  of  the  specific  acts  in  question. 
This  agrees  substantially  with  the  difference  between 
interpretation  and  construction,  which  will  appear  in 
the  course  of  this  work.^ 


(1)  To  explain  and  interpret,  are  not  confined  to  wliat  is 
written  or  said,  they  are  employed  likewise  witli  regard  to  the 
actions  of  men.'     Crabb  Eng.  Syn.j  ad  verb.     Explain. 

(2)  It  is  always  well  to  have  everything  as  clear  around  us,  as 
possible  ;  it  gives  light  and  imparts  vigor  to  the  mind,  if  we  see 
the  Whence  and  Whither  of  things,  and  trace  connection  where 
insulation  seems  to  exist ;  even  though  it  be  in  matters  appar- 
ently trifling.  I  hope  to  be  pardoned  therefore,  by  the  strictly 
practical  Lawyer,  if  I  dwell  for  a  moment  on  the  origin  of  the 
word,  which  claims  our  attention  for  the  present,  in  a  sphere, 
very  different  from  that  of  Law. 

To  Interpret,  as  is  well  known,  is  derived  from  the  Latin 
interpres,  interpretari,  a  compound  of  inter  and  prctari.  The 
latter  belongs,  as  nearly  all  truly  Latin  words,  according  to  its 
root,  to  that  language,  which  was  spoken  by  the  original  inhabi- 
tants or  settlers  of  Europe,  and  of  which  the  Gothic,  Ancient 
High  German,  Swedish,  Icelandic,  Latin  6ic.,  are  but  descended, 
and  which  was  likewise  either  the  first  foundation  of  the 
Greek,  or  so  strongly  influenced  it,  that  the  root  of  enumera- 
ble words  is  easily  traced  through  all  these  languages.  The 
many  profound  inquiries  of  European  philologists  have  brought 
so  many  facts  to  liglit,  that  this  connection  may  be  considered 
as  firmly  established,  while  historic  inquiries  have  shown  the 
vast  population  of  Italy  long  before  any  records  of  the  Romans 
began. 

Pretari  is  of  the  same  root  with  many  words  in  Teutonic 
languages  ;  prata  in  Swedish  is  speaking  ;  we  have  prating  and 
prattling ;  the  German  reden  (pronounce  raden,)  speaking,  is  the 


CHAPTER     I.— SECTION      VI,,  VII.       21 


VI.  The  idea,  involved  in  the  term  Interpretation, 
that  we  have  to  discover  the  true  meaning  of  signs, 
and  represent  it  to  others,  impHes,  Ukewise,  that  we 
proceed  in  doing  so,  on  safe  ground,  according  to 
rules  established  by  reason,  and  not  arbitrarily  or 
whimsically.  On  this  account,  interpretation,  and, 
as  will  be  seen  in  the  sequel,  construction,  are  distinct 
from  conjecture.  Still  it  lies  in  the  nature  of  things, 
that,  in  some  cases,  they  approach  to  each  other. 

Conjecture  is  vague,  interpretation  is  distinct ;  but 
in  as  far  as  that,  which  is  to  be  interpreted,  affords 
less  and  less  opportunity  for  the  application  of  the 
rules  established  for  interpretation,  the  latter  ap- 
proaches to  conjecture  ;  provided  we  have  not  to 
apply  construction. 

VII.  Those  signs,  by  which  man  most  frequently 
endeavors  to  convey  his  ideas  to  another,  and  by 
which  in  most  cases  he  best  succeeds  in  conveying 
thera,  are  words. 


same,  for  d  and  t  easily  change,  while  a  consonant  before 
another  (P  in  this  case.)  is  frequently  dropped,  or  it  may  be 
tliat  reden  is  the  original.  PrOtcn  signifies,  to  this  day,  in  some 
parts  of  Germany,  speaking  loud  and  monotonously.  Pradlcare 
and  the  Greek  (fqd'Qsiv  belong  to  the  same  family  of  words. 
It  is  very  possible  that  pretari.  and  prating  are  of  the  same  root 
with  broad,  German  breit,  speak  broadly,  plainly. — The  present 
German  word  for  interpreting  is  ausUgen,  laying  out,  laying 
tpen,  unfolding. 


2'2  H  E  R  M  E  N  E  U  T  I  C  S  . 

Words  are  articulate  sounds,  or  the  representation 
of  them  on  or  in  some  material,  by  certain  adopted 
characters,  to  which,  single  or  combined,  we  attach 
certain  fixed  ideas.  The  idea  or  notion  thus  attached 
to  any  word  is  called  its  signification  ;  the  general 
idea,  or  the  assemblage  of  ideas  or  notions,  conveyed 
by  several  words  grammatically  connected  together, 
is  called  the  sense  or  meaning  of  the  words  or  period. 
The  true  sense  or  meaning  is  that  which  they  ought 
to  convey. 

It  is  clear,  therefore,  that  the  term,  true  sense,  in 
its  most  comprehensive  adaptation,  may  signify  dif- 
ferent things,  according  to  the  different  object  we 
have  in  view.  Thus  a  teacher  will  say  to  his  pupil, 
who  has  unskilfully  expressed  himself:  '  you  meant 
to  say  such  a  thing,  but  the  true  meaning  of  your 
period  is  quite  a  different  one;  that  is,  the  meaning 
which  your  words  express,  according  to  their  signifi- 
cation, and  the  rules  of  combining  them,  universally 
adopted,  is  different  from  what  you  intended  to  say.' 
The  teacher  is  right  in  calling  the  true  sense,  that 
which  the  words  express  according  to  the  general 
rules,  for  his  object  is  to  teach  the  pupil  how  to 
convey  his  ideas  correctly  and  perspicuously,  to 
make  use,  therefore,  of  the  words  according  to  rules 
generally  adopted,  without  which  there  would  be  no 
such  thing   as   understanding   one   another  among 


CHAPTER     I.  SECTION     VIII.  23 

men.  The  case  changeSj  however,  when  the  object 
of  the  speaker  or  writer  is,  not  to  learn  the  use  of 
words,  but  simply  to  convey  certain  ideas.  True 
sense  is  in  this  case  the  meaning  which  the  person 
or  persons,  who  made  use  of  the  words,  intended  to 
convey  to  others,  whether  he  used  them  correctly, 
skilfully,  logically  or  not. 

Understanding  or  comprehending  a  speaker  or 
something  written,  means  attaching  the  same  signifi- 
cation or  sense  to  the  words  which  the  speaker  or 
writer  intended  to  convey. 

VIII.  Inasmuch,  therefore,  as  the  term  interpre- 
tation is  applied  to  words,  used  as  the  common  means 
of  converse  or  communion  among  men,  we  define  it 
thus  : 

Interpretation  is  the  art  of  finding  out  the  true 
sense  of  any  form  of  words  :  that  is,  the  sense  which 
their  author  intended  to  convey,  and  of  enabling 
others  to  derive  from  themth  e  same  idea  which  the 
author  intended  to  convey.  It  was  this  latter  which 
was  meant  by  the  word  '  representation  '  in  section 
iv.  of  this  chapter. 

Sometimes  interpretation  signifies,  likewise,  the 
art  which  teaches  us  the  principles,  according  to 
which  we  ought  to  proceed  in  order  to  find  the  true 
sense.     See   Prolegomena  iii.  in   Ernesti,  Institutio 


24  HERMENEUTICS. 

Interpretis,  page  6,  vol.  I.  in  the  translation  of  Mr. 
Terrot,  vol.  I.  of  the  Biblical  Cabinet,  Edinburgh, 
1832.  This  art  or  science,  however,  is  better  called 
the  principles  of  interpretation,  or,  which  is  prefera- 
ble to  either,  hermeneutics,  of  which  more  will  be 
said  hereafter. 

IX.  In  law  and  politics  we  have  to  deal  so  little 
with  the  interpretation  of  any  other  signs  than  words, 
that  the  term  Interpretation,  if  used  without  any 
additional  expression,  means  always  the  interpreta- 
tion of  words. 

For  the  sake  of  brevity,  the  term  Text  will  be 
used,  to  designate  the  word  or  words,  or  discourse 
to  be  interpreted  or  construed,  or  the  whole  writing 
in  which  they  are  contained.  The  term  Utterer 
will  be  used  for  the  author  of  the  words  to  be  inter- 
preted, whether  he  uttered  them  in  writing,  or 
orally. 


CHAPTER  11. 


Ambiguity  of  Human  Speech. — Processes  of  Formation  of 
Words. — Necessity  of  always  leaving  much  to  be  understood 
by  Interpretation. — Not  to  be  avoided  by  Specification  and 
Amplification. — Causes  of  Ambiguity  in  the  Language,  the 
Utterer,  the  Change  of  Circumstances. — Desire  of  avoiding 
different  Interpretation. —  Prohibition  of  Commentaries. — 
Napoleon's  View. — Interpretation  cannot  be  dispensed  with. — 
Civil  Liberty  demands  Independence  of  the  Judiciary,  of  the 
Law. — Correct  Interpretation  more  necessary  in  free  Countries 
than  in  States  not  free. 

I.  If  Interpretation  is  the  discovery  of  the  true 
sense  of  words,  it  is  presumed  that  this  sense  is  not 
obvious ;  for,  that  which  must  be  discovered  or 
found  out,  must  needs  be  hidden  in  some  way  or 
other  before  it  is  discovered.  Yet  words  signify 
ideas  or  things,  and  how  does  it  happen,  that,  if  used 
for  the  very  purpose  of  conveying  our  ideas,  they 
can  leave  any  doubt  ? 

The  ambiguity  of  human  speech  is  owing  to  a 
vast  variety  of  causes,  at  times  intentional,  at  others 
unintentional,  avoidable  or  unavoidable,  owing  to  the 
3 


26  HERMENEUTICS. 

utterer,  to  the  words  or  the  situation  of  things  and 
their  changes.  The  most  common  or  most  impor- 
tant causes  will  be  given  here,  and  it  is  necessary  to 
weigh  them  well,  since  many  errors  in  the  highest 
spheres  of  politics  and  law  have  arisen  from  an  in- 
sufficient consideration  of  these  causes,  and  a  con- 
sequent behef,  which  still  manifests  itself  not  unfre- 
quently  in  many,  that  ambiguity  can  be  entirely 
avoided,  or  that  certain  instruments  of  the  gravest 
import  do  not  contain  any,  and,  consequently  do  not 
require  interpretation. 

11.  In  no  case  are  words,  originally,  produced 
in  a  finished  state  by  the  reflecting  intellect,  and 
consciously  affixed  to  objects,  presenting  themselves 
to  the  mind  in  their  clearly  defined  state,  but  on  the 
contrary,  things,  actions  (rather  activities,)  in  short, 
phenomena,  present  themselves  as  a  whole,  with  a 
number  of  adjuncts,  a  mass  of  adhesion,  and  become 
in  the  course  of  time  only,  enlarged  in  their  meaning 
to  more  generic  terms,  or  a  prominent  quality  strikes 
so  manifestly  the  human  mind,  that  it  alone  urges  to 
utterance,  which  in  course  of  time  only  becomes 
more  restricted  to  specific  objects.  As,  however, 
these  processes  are  going  on,  at  the  same  time,  with 
many  people,  subject  indeed  to  the  same  general 
laws,  but  not  being  under  the  same  specific  influen- 


CHAPTER     II  . S  ECTION     III.  27 

ces,  the  natural  consequence  is,  that  terms  receive  a 
meaning,  distinct  indeed  as  to  some  points,  but  indis- 
tinct as  to  others,  or,  to  use  a  simile,  they  may  be 
distinct  as  to  the  central  point  of  the  space  they 
cover,  but  become  less  so  the  farther  we  remove 
from  that  centre,  somewhat  like  certain  territories  of 
civilized  people  bordering  on  wild  regions.  This, 
then,  would  be  a  necessary  cause  of  ambiguity,  even 
if  the  nature  of  things  and  ideas  itself  were  not  so 
that  mathematical  precision  becomes  impossible,  ex- 
cept in  mathematics  themselves. 

III.  Were  we  desirous,  therefore,  of  avoiding 
every  possible  doubt,  as  to  what  we  say,  even  in  the 
most  common  concerns  of  our  daily  life,  even  if  we 
pronounce  so  simple  a  sentence  as  '  give  me  some 
bread,'  endless  explanations  and  specifications  would 
be  necessary  ;  but  in  far  the  greater  number  of  cases, 
the  difficulties  would  only  increase,  since  one  specifi- 
cation would  require  another.  To  be  brief,  the  very 
nature  and  essence  of  human  language,  being  as  we 
have  seen,  not  a  direct  communion  of  minds,  but  a 
communion  by  intermediate  signs  only,  renders  a 
total  exclusion  of  every  imaginable  misapprehension, 
in  most  cases,  absolutely  impossible. 

There  are  some  nursery  stories,  representing,  to 
the  great  amusement  of  the  little  ones,  people  wha 


^8  HEBMENEUTICS. 

are  prompted  by  a  pedantic  anxiety  to  speak  with 
absolute  clearness,  and  only  entangle  themselves  in 
endless  explanations,  one  upon  the  other,  until  the 
whole  story  ends  with  an  utter  inability  of  the 
pedant  to  ask  for  the  commonest  thing,  and  he  dies 
of  hunger.  These  stories  are  founded  upon  the 
principles  touched  upon  above,  and  though  but  nur- 
sery tales,  they  contain  a  truth,  which  for  a  long 
time  was  little  acknowledged  in  the  drawing  up  of 
laws,  wherein,  it  was  believed,  explanation  and  spe- 
cification, piled  upon  explanation,  would  produce 
greater  and  greater  clearness,  while  in  fact  they  pro- 
duced greater  and  greater  obscuri  ty^ 

IV.  Let  us  take .  an  instance  of  the  simplest 
kind,  to  show  in  what  degree  we  are  continually 
obliged  to  resort  to  interpretation.  By  and  by  we 
shall  find  that  the  same  rules  which  common  sense 
teaches  every  one  to  use,  in  order  to  understand  his 
neighbor  in  the  most  trivial  intercourse,  are  necessary 
likewise,  although  not  sufScient,  for  the  interpreta- 
tion of  documents  or  texts  of  the  highest  importance, 
constitutions  as  well  as  treaties  between  the  greatest 
nations^ 

Suppose  a  housekeeper  says  to  a  domestic  .'  '  fetch 
some  soupmeat,'  accompanying  the  act  with  giving 
some  money  to  the  latter,  he  will  be  unable  to  exe- 


CHAPTER     II  . S  ECTION     IV.  29 

cute  the  order  without  interpretation,  however  easy, 
and,  consequently,  rapid  the  performance  of  the 
process  may  be.  Common  sense  and  good  faith  tell 
the  domestic,  that  the  housekeeper's  meaning  was 
this :  I .  He  should  go  immediately,  or  as  soon  as 
his  other  occupations  are  finished ;  or,  if  he  be 
directed  to  do  so  in  the  evening,  that  he  should  go 
the  next  day  at  the  usual  hour ;  2.  that  the  money 
handed  him  by  the  housekeeper  is  intended  to  pay 
for  the  meat  thus  ordered,  and  not  as  a  present  to 
him  ;  3.  that  he  should  buy  such  meat  and  of  such 
parts  of  the  animal,  as,  to  his  knowledge,  has  com- 
monly been  used  in  the  house  he  stays  at,  for  making 
soups ;  4.  that  he  buy  the  best  meat  he  can  obtain, 
for  a  fair  price  ;  5.  that  he  go  to  that  butcher  who 
usually  provides  the  family,  with  whom  the  domestic 
resides,  with  meat,  or  to  some  convenient  stall,  and 
not  to  any  unnecessarily  distant  place  ;  6.  that  he 
return  the  rest  of  the  money  ;  7.  that  he  bring 
home  the  meat  in  good  faith,  neither  adding  any 
thing  disagreeable  or  injurious  ;  8.  that  he  fetch  the 
meat  for  the  use  of  the  family  and  not  for  himself. 
Suppose,  on  the  other  hand,  the  housekeeper,  afraid 
of  being  misunderstood,  had  mentioned  these  eight 
specifications,  she  would  not  have  obtained  her  ob- 
ject, if  it  were  to  exclude  all  possibility  of  misun- 
derstanding. For,  the  various  specifications  would 
3* 


36  H  E  RMEN  EU  TIC  S  . 

have  required  new  ones.  Where  would  be  the  end  ? 
We  are  constrained,  then,  always,  to  leave  a  consid- 
erable part  of  our  meaning  to  be  found  out  by  inter- 
pretation, which,  in  many  cases  must  necessarily 
cause  greater  or  less  obscurity  with  regard  to  the 
exact  meaning,  which  our  words  were  intended  to 
convey. 

Experience  is  a  plant  growing  as  slow  as  confi- 
dence, which  Chatham  said  increased  so  tardily. 
In  fact,  confidence  grows  slowly,  because  it  depends 
upon  experience.  The  British  spirit  of  civil  liberty, 
induced  the  English  judges  to  adhere  strictly  to  the 
law,  to  its  exact  expressions.  This  again  induced 
the  law-makers  to  be,  in  their  phraseology,  as  ex- 
plicit and  minute  as  possible,  which  causes  such  a 
tautology  and  endless  repetition  in  the  statutes  of 
that  country,  that  even  so  eminent  a  statesman  as 
Sir  Robert  Peel,  declared  in  parliament,  that  he 
'  contemplates  no  task  whh  so  much  distaste,  as  the 
reading  through  an  ordinary  act  of  parliament.'  Men 
have  at  length  found  out,  that  little  or  nothing  is 
gained  by  attempting  to  speak  with  absolute  clear- 
ness, and  endless  specifications,  but  that  human 
speech  is  the  clearer,  the  less  we  endeavor  to  supply 
by  words  and  specifications,  that  interpretation  which 
common  sense  must  give  to  human  words.  How- 
ever minutely  we  may  define,  somewhere  we  needs 


CHAPTER     II. SECTION     IV.  3r\ 

must  trust  at  last  to  common  sense  and  good  faith. 
The  words  of  Sir  Robert  Peel,  introductory  to  his 
bill  for  amending  the  penal  code  of  Great  Britain, 
are  too  valuable  not  to  find  a  place  here.  He  said 
in  the  house  of  Commons  : 

*  I  certainly  have  set  the  example  to  the  house, 
of  drawing  up  such  bills  for  the  future,  in  an  intelli- 
gible manner.  Not  being  myself  a  lawyer,  and 
possessing,  of  course,  no  technical  knowledge,  I  do 
confess,  sir,  that  there  is  no  task  which  I  contem- 
plate with  so  much  distaste,  as  the  reading  through 
an  ordinary  act  of  parliament.  In  the  first  place, 
the  long  recapitulations,  the  tedious  references,  the 
constant  repetitions,  the  providing  or  designating 
offences  as  punishments  for  the  specific  case  of  men, 
women  and  children,  and  for  every  degree  and  rela- 
tion in  society,  and  the  necessity  of  indicating  these 
several  personages  and  matters  by  as  many  appro- 
priate relations  and  designations — then  the  confusion 
resulting  from  the  attempt  to  describe,  and  constantly 
referring  to  many  different  descriptions  of  property. 
Really,  sir,  all  these  various  repetitions,  recapitula- 
tions, and  references  are  so  tedious  and  so  perplex- 
ing, that  I,  for  one,  almost  invariably  find  myself 
completely  puzzled  before  I  get  to  the  end  of  a 
single  clause.  The  mode  I  have  adopted  in  this 
bill,  to  obviate  all  this  confusion  and  uncertainty  (we 


32  HERMENEUTICS. 

see,  then,  that  the  attempt  at  being  absolutely  distinct 
leads  to  greater  uncertainty  instead  of  certainty,) 
does  seem  to  me,  I  speak  it  with  submission,  much 
more  eligible  and  precise,  than  the  usual  phraseology, 
adopted  in  these  acts,  and  might,  I  cannot  help 
thinking,  be  pursued  with  advantage  in  bills  which 

may  be  brought  in  hereafter.' '  Owing  to  the 

various  lights  in  which  I  have  considered  this  pro- 
vision, and  the  extent  which  I  have  thus  given  to  the 
bill,  I  am  afraid  it  will  be  impossible  to  frame  one 
more  comprehensive.'     So  far  Sir  Robert. 

The  fact  is,  the  English  had  gone,  in  their  attempt 
at  perfect  perspicuity,  so  far  as  even  to  striv^e  to  ex- 
clude the  interpretation  of  common  sense,  which  is 
a  matter  of  impossibility. 

The  full  and  redundant  phraseology  of  Mr. 
Burke's  will,  by  which  he  wished  to  pass  his  prop- 
erty to  his  wife  and  her  heirs,  with  the  codicil  of 
July  30,  1795,  is  another  instance  of  the  fact,  that 
we  do  not  arrive  at  great  perspicuity  by  going  beyond 
a  certain  limit;  and  this  limit  is,  where  plain  common 
sense  must  begin  to  interpret,  that  is,  where  we  must 
begin  to'give  to  words  that  meaning,  which,  according 
to  plain  common  sense,  they  ought  to  have. 

The  more  we  strive  in  a  document  to  go  beyond 
plain  clearness  and  perspicuity,  the  more  we  do 
increase,  in  fact,  the  chances  of  sinister  interpreta- 
tion. 


CHAPTER     II  . S  E  C  T  I  O  N     V.  33 

V.  Words  themselves,  as  was  alluded  to,  may 
have  an  ambiguous  signification  ;  this  arises  from  dif- 
ferent causes. 

1 .  The  objects  of  the  physical  world  are  not  so 
distinctly  defined  from  each  other  as  they  appear  to 
be  at  first  glance.  Innumerable  transitions  exist  be- 
tween them.  To  this  day,  no  naturalist  has  yet 
succeeded  in  giving  an  entirely  satisfactory  definition 
of  the  word  plant,  which,  as  every  true  definition 
ought  to  do,  includes  the  signs  characteristic  of  all 
individual  specimens  called  plants,  and  extends  no 
farther,  or  absolutely  excludes  every  thing  else. 
The  lawgivers  of  all  countries  have  found  it  a  diffi- 
cult task  to  give  an  exact  legal  definition  of  the  word 
arms,  and  one  still  more  difficult,  to  define  the  terms 
defensive  and  offensive  arms.  In  a  criminal  law- 
suit one  credible  Vvitness  testified  that  he  had  seen  a 
bench  in  a  certain  room  covered  with  blood  ;  another, 
equally  credible,  stated  upon  oath  that  he  had  seen, 
in  the  same  room,  a  table  and  no  bench,  soiled  with 
blood.  The  fact  was,  that  the  object  sworn  to,  was, 
considered  as  a  bench,  unusually  high  and  wide  ; 
considered  as  a  table,  low  and  narrow. 

2.  Ideas  relating  to  the  invisible  world  flow  still 
more  one  into  another  ;  not  always  from  want  of 
words,  but  frequently  on  account  of  the  gradual 
transitions  from  one  extreme  to  another. 


34  HERMENEUTICS. 

3.  Words  themselves  mean  different  things,  some- 
times more,  sometimes  less  connected  with  each 
other;  or  they  do  not  signify  the  thing,  or  idea  to  be 
named,  with  sufficient  precision.  This  is  owing, 
among  other  reasons,  to  the  fact,  that  most  words 
expressive  either  of  abstract  ideas,  or  subjects  be- 
longing to  the  invisible  world  are  faded  tropes,  that 
is,  words  meaning  originally  objects  of  the  sensible 
world,  but  which  are  now  applied  to  the  intellectual. 
In  many  cases,  therefore,  different  people  do  not 
connect  exactly  the  same  ideas  with  the  same  words, 
although  they  may  be  used  everywhere. 

VI.  The  person,  who  endeavors  to  convey  some 
meaning  to  us,  may  not  use  the  proper  means. 

1 .  He  may  be  illiterate  and  not  use  the  words  in 
their  most  proper  or  generally  adopted  meaning. 

2.  He  may  not  be  sufficiently  trained  in. grammar, 
to  know  the  different  signification  and  effect  which 
a  word  acquires  by  a  different  position. 

3.  He  may  speak  or  write  on  the  spur  of  the 
moment,  or  in  great  excitement,  and  not  be  able  to 
select  those  means  of  conveying  his  ideas,  which 
calm  deliberation  would  have  suggested. 

4.  He  may  be  sick  or  dying,  and  not  be  as  fully 
master  of  the  means  of  expression,  as  he  was  in  a 
healthy  state  ;  which  is  not  unfrequently  the  case. 


CHAPTER     II. SECTION     VII.  35 

with  regard  to  wills,  dictated  in  haste,  or  merely 
pronounced  in  the  presence  of  witnesses,  which  oral 
wills  are  valid  in  some  countries  and  with  certain 
restrictions,  and  are  known  to  the  common  law  as 
nuncupative  wills. 

VII.  We  may  not  be  fully  acquainted  with  the 
precise  meaning,  which  the  members  of  a  certain 
sect,  profession  or  trade,  or  the  inhabitants  of  cer- 
tain parts  of  a  country  may  attach,  or  which  at  cer- 
tain periods  of  history  may  have  been  attached,  to 
certain  terms.  Or  it  may  have  become  necessary 
to  apply  established  words  to  new  ideas,  as  was  the 
case  with  many  Greek  words  when  used  by  Paul,  or 
other  early  Christians ;  or  as  is  the  case  with  the 
word  travelling  since  the  invention  of  steam  cars. 
Some  commentators  say  travelling  includes  travelling 
by  land  or  water,  on  foot,  on  any  animal,  or  drawn 
or  supported  by  any  animal.  The  word  travelling, 
therefore,  if  used  in  a  law,  for  instance,  in  a  penal 
law,  which  provides  peculiar  protection  for  travellers, 
may  require  interpretation,  since  the  introduction  of 
travelling  by  steam.  The  counsel  of  a  prisoner 
charged  with  a  crime  on  the  highway  might  argue, 
that  severer  penalties  are  inflicted  for  crimes  of  this 
class  only  on  account  of  the  traveller's  distance  from 
people  who  might  assist  him,  as  would  be  the  case 


36  HERMENEUTICS. 

in  a  populous  place,  but  that  on  railroads,  a  large 
number  of  people  always  travel  together,  and  hence 
the  law  need  not  afford  additional  protection,  which 
in  this  case  being  greater  severity,  ought  not  to  be 
furnished.  Indeed,  it  might  be  of  very  great  im- 
portance, and  yet  not  so  easy  to  determine,  because 
the  life  of  an  individual  may  depend  upon  it,  whether 
railroads  are  highways  in  the  meaning  of  the  penal 
law. 

There  are  many  words  used  by  some  religious 
sects  or  communities  in  America,  in  a  manner,  in 
which  they  are  not  common  with  the  community  at 
large.  Other  words  again  have  not  acquired  with 
the  people  themselves  a  perfectly  definite  meaning. 
Not  long  ago,  an  individual  in  New-England  left  a 
legacy  for  the  benefit  of  the  poor  of  his  place,  but 
only  to  those  poor  who  are  of  '  the  household  of 
faith.'  See  John  Pickering's  Lecture  on  the  alleged 
Uncertainty  of  the  Law,  Boston,  1834.'  This  ex- 
pression has  either  not  acquired  a  very  definite  mean- 
ing with  the  people,  who  use  it ;  or  if  it  have,  those 
who  do  not  use  it  by  way  of  sectarian  terminology, 
are  unable  to  connect  an  idea  with  it,  so  clear  as  to 
allow  of  legal  action. 

Vin.  We  may  not  be  fully  acquainted  with  the 
language  in  which  something  is  written,  with  the 
precise  bearing  or  shade  of  meaning  which  certaiu 


CHAPTER     II  . S  ECTION     IX.  37 

words  have  in  a  foreign  idiom  or  had  in  that  lan- 
guage, at  a  particular  period,  or  with  a  particular 
author. 

The  person  who  speaks  or  writes,  may  not  be 
decidedly  clear  himself  on  what  he  speaks  or  writes  ; 
he  may  not  be  fully  master  of  the  subject.  His 
ideas,  therefore,  may  yet  be  vacillating,  so  that  the 
different  parts  of  what  he  utters,  are  not  strictly 
consistent  with  one  another. 

It  may  be  the  intention  of  the  speaker  or  writer, 
not  to  speak  plainly,  from  kindness,  fear,  cunning, 
malice,  caution,  as  in  times  of  war  or  revolution,  or 
any  other  motive.  He  may  be  desirous  of  leaving 
to  him,  whom  he  addresses,  a  choice  of  means  or 
actions ;  or  he  may  purposely  express  himself 
vaguely,  so  that  at  some  future  period,  he  may  be  at 
liberty  to  resort  to  one  or  the  other  meaning,  accord- 
ing to  convenience  or  interest. 

IX.  Decorum,  especially,  may  be  the  reason  of 
not  expressing  ourselves  so  plainly  and  distinctly,  as 
a  knowledge  of  the  subject  and  mastery  of  the  lan- 
guage would  otherwise  enable  us  to  do. 

Thus  the  Prussian  Code,  Vol.  ii.  Tit.  xx.  1069, 
says  : 

'  And  other  unnatural  sins  of  a  similar  kind, 

which  cannot  be  mentioned  here,  on  account  of  their 
4 


38  HERMENEUTICS. 

• 

vileness,  demand  an  utter   extinction  of  their  mem- 
ory.'^ 

Pope  Innocent  III,  writing  against  the  abomina- 
ble and  indecent  swearing  in  France  in  the  thirteenth 
century,  and  threatening  his  displeasure,  says  in  his 
letter :  *  they  utter  things  in  their  oaths  which  we 
cannot  mention.'^ 

X.  It  may  be  the  object  of  the  utterer,  to  clothe 
the  true  sense  in  various  tropes,  in  metaphors, 
allegories,  as  poets  frequently  do.  Or  it  may  not 
be  possible  to  express,  what  we  wish  to  say,  in  any 
better  way,  than  by  an  approximation  to  it,  by  way 
of  tropes  or  other  figurative  language. 

The  speaker  or  writer  may,  purposely  or  involun- 
tarily, use  such  words  as  would  express  far  more 
than  his  calm  and  settfed  opinion,  were  they  to  be 
taken  literally,  or  were  not  great  deduction  to  be 
made  from  them. 

We  may  be  but  imperfectly  or  not  at  all  ac- 
quainted with  the  subject,  to  which  the  words  of  the 
discourse  relate,  for  instance  to  customs,  persons  or 
events  of  nations,  removed  from  us  at  a  great  dis- 
tance either  by  space  or  time. 

(1)  That  the  reader  may  not  misunderstand  the  expression 
'  utter  extinction,'  1  will  add  that  the  criminal  besides  his  other 
punishment,  is  banished  for  ever  from  the  place  of  his  former 
residence,  where  his  crime  has  become  known. 

(2)  Innocentii  III   Epislolee,  Balusii  edit.  Tom.  II.  p.  735 


I 


CHAPTER     II . S  ECTION     XI.  39 

The  speaker  or  writer  may  not  have  the  oppor- 
tunity of  acquiring  a  perfect  knowledge  of  the 
subject,  he  treats  of,  as  was  the  case  with  many 
ancient  grants. 

If  a  text  is  obscure  from  the  loss  or  interpolation 
of  certain  passages,  it  is  not  by  interpretation  that 
we  can  remedy  the  evil,  as  will  appear  from  the 
definition  which  has  been  given. 


t\  XI.  It  appears,  then,  from  the  foregoing  re- 
marks, that  obscurity  of  sense  may  arise,  either 
from  a  want  of  knowledge  of  the  subject  (either  in 
^  the  speaker  or  hearer,  the  writer  or  reader,)  or  from 
i,^  an  imperfect  knowledge  of  the  means  of  communi- 
cation, (again,  either  in  the  speaker  or  writer,  on 
tlie  one  hand,  or  the  hearer  or  reader  on  the  other.) 
And  farther,  that  interpretation  of  some  sort  or 
other  is  always  requisite,  whenever  human  language 
is  used  ;  because  no  absolute  language,  by  which  is 
meant  that  mode  of  expression,  which  absolutely 
says  all  and  every  thing  to  be  said,  and  absolutely 
excludes  every  thing  else,  is  possible,  except  in  one 
branch  of  human  knowledge,  namely,  mathematics. 
Owing  to  the  peculiar  character  of  this  science,  its 
terms  express  the  precise  idea  to  be  expressed, 
neither  more  nor  less.  Its  language  is  always 
sufficient  for  the  subject  it  treats  of,  because  It  pro-^. 


40  HERMENEUTICS. 

ceeds  in  inventing,  and  has -to  do  with  the  under- 
standing alone,  but  not  with  the  subjects  of  real 
hfe,  nor  with  the  feelings,  the  nobler  reasoning 
powers,  the  many  interests  and  motives  of  man,  the 
lowness  or  the  elevation  of  the  human  soul,  and 
their  thousand  intricate  ramifications. 

If  it  is  certain  that  interpretation  of  some  sort  or 
other  cannot  be  dispensed  with,  wherever  human       ^ 
language  is  used,  except  in  mathematics,  the  neces-       ^^ 
sary  consequence  will  be,  that  we  have  to  ascertain     ^>v 
the  principles  of  true  and  safe  interpretation.     Im-        ^ 
portant  as  it  is  in  all  spheres  of  human  activity  or        m 
knowledge,  it  is  peculiarly  so  where  written  rules  of       ^ 
action  are  given,  as  in  religious,  moral,  or  political        •> 
codes,  laws,  wills,  contracts,  and  treaties,  or  when        » 
works  or   documents  of  distant  tribes  or  by-gone 
ages  lie  before  us,  in  history  and  philology.  • 

XII.     It  has  not  escaped  the  observation  of  the 
lawgivers    of  different   nations,    that  owing   to  the         4 
different   interpretation,    put   upon  the  same  laws,         ^  , 
much  vexation  and  trouble  arise.     In  fact,  the  '  un-        ^ 
certainty  of  the   law,'  which  originates  in   a  great  jK^ 

measure  from  the  different  interpretation  to  which  V' 

one  and  the  same  law  may  be  subject,  has  become 
proverbial.  It  has  been,  therefore,  the  anxious 
desire  of  several  well-disposed  legislators,  to  avoid 


CHAPTER     II  . S  ECTION     XII.  41 

interpretation  and  consequent  commentaries,  by  fram- 
ing codes  of  law  which  should  be  so  complete  and 
exact  as  to  render  interpretation  superfluous.  To 
diminish  litigation,  and  to  make  lawyers  compara- 
tively useless,  was  one  of  the  objects  of  the  Prussian 
code,  promulgated  by  Frederick  the  Great.  Napo- 
leon said,  according  to  the  Memorial  de  St.  Helene, 
by  Las  Cases,  that  he  once  entertained  the  idea, 
that  all  principles  of  law  might  be  reduced  to  a  few 
concise  forms,  which  ought  to  be  combined  accord- 
ing to  fixed  rules,  similar  to  those  of  mathematics ; 
and  that  thus  simplicity  and  certainty  of  law  might 
be  established.  He  soon,  however,  gave  up  the 
idea,  when  he  came  to  discuss  the  various  parts  of 
the  French  civil  code,  with  the  other  members  of 
the  committee  appointed  to  draw  up  that  work.  In 
Bavaria,  commentaries  on  the  penal  code  are 
actually  prohibited.  With  true  wisdom  did  the 
government  of  that  country  officialfy  publish  the 
motives,  explanations,  fee,  which  were  given  in  the 
course  of  the  discussions  in  the  king's  privy  council, 
for  adopting  the  various  laws.  They  have  been 
drawn  up  and  reduced  to  a  systematic  whole, 
published  in  three  volumes,  Munich,  1813,  and 
1814.  But  it  was  not  equally'  wise  to  prohibit 
commentaries  ;  for  those  who  advised  the  king  so  to 
do,  forgot,  that  as  they  felt  bound  to  explain  the 
4* 


42  HERMENEUTICS, 

various  provisions  of  the  code,  so  would  their  own 
explanations  again  carry  along  with  them  the  neces- 
sity of  interpretation,  simply  because  drawn  up  in 
human  language,  though  we  willingly  allow,  not  in 
the  same  degree  with  the  briefer  code.  No  code 
can  possibly  provide  for  all  specific  cases,  which 
most  frequently  consist  of  a  combination  of  simple 
elements  ;  nearly  every  case  in  reality  is  a  complex 
one  ;  and  because  the  various  relations  of  men  are 
forever  changing. 

This  remarkable  prohibition  of  commentaries  in 
Bavaria,  is  to  be  found  in  the  royal  mandate  of 
October  19,  1813,  by  Maximilian  Joseph,  to  all 
the  courts  of  appeal,  printed  before  the  Notes  to 
the  Penal  Code  for  the  kingdom  of  Bavaria,  accord- 
ing to  the  Protocols  of  the  royal  Privy  Council,  3 
vols.     Munich,  1813,  1814.     It  reads  thus  : 

'  We,  therefore,  direct  you,  with  regard  to  all 
points  which  depend  upon  the  interpretation  of  the 
penal  code,  the  sense  and  motive  of  a  legal  distinc- 
tion, and  the  principles  of  their  application,  to  refer 
to  the  notes,  and  expressly  to  mention  the  respective 
passage  of  the  notes  should  you  have  to  make  any 
report  for  inquiry  as  to  a  doubtful  point.  And  it  is 
our  express  order,  that  besides  this  exposition, 
ordered  by  ourselves,  no  officer  of  the  state,  or 
private  scholar,  shall  publish  a  commentary  on  the 


CHAPTER      II  . S  ECTION      XIII.         43 

penal  code,  and  that  the  courts,  in  trying  and  judg- 
ing penal  cases,  as  well  as  the  professors  of  our 
Universities  in  their  lectures,  shall  rely  exclusively 
on  the  text  of  the  code  with  reference  to  the  notes, 
so  that  the  penal  code  be  applied  and  taught  in  the 
same  spirit  in  all  parts  of  our  kingdom,  and  accord- 
ing to  that  which  we  have  been  pleased  to  ordain 
and  explain.'  Still  the  royal  mandate  continues 
immediately  thus : — 

'We  charge  you  carefully  to  collect  that  which, 
in  occurring  cases,  may  appear  to  you  especially 
important  or  doubtful,  and  to  send  the  same,  at  the 
conclusion  of  the  first  year  directly  to  us,  with 
remarks  upon  it.' 

In  a  similar  spirit,  and  with  equally  good  intention, 
it  was  formerly  not  considered  advisable,  in  Prussia, 
to  allow  professors  of  law  to  lecture  in  the  Univer- 
sities on  the  code,  for  fear  that  scientific  comments 
should  lead  to  perplexity,  and  thus  defeat  one  of 
the  main  objects  of  the  code — simplicity  of  law. 
Mr.  de  Savigny  was,  I  believe,  the  first  Prussian 
jurist,  who  delivered  lectures  on  the  code  of  Fred- 
eric; he  began  them  about  the  year  1819,  if  I 
recollect  right. 

XIII.  It  would,  indeed,  be  a  subject  greatly  to 
be  deplored  if  it  were  possible — happily  it  is  not — 


44  HERMENEUTICS. 

to  produce  a  code  so  constructed  as  to  be  closed  for 
ever.  It  is  one  of  the  most  efficient  agents  in  the 
civil  progress  of  a  nation,  that,  certain  principles 
being  established,  they  should  be  left  to  unfold 
themselves  gradually,  and  to  be  expanded,  modified, 
and  limited,  by  the  civil  action  of  the  nation  itself, 
by  the  practical  political  intercourse  of  society.  On 
this  subject  more  will  be  said  hereafter ;  in  the 
present  place  I  beg  only  to  add,  in  order  not  to  be 
misunderstood,  that  I  am  as  zealous  an  advocate  of 
the  certainty  of  law  as  any  citizen  can  be,  who  loves 
clear  right,  and,  therefore,  is  anxious  to  know  it. 
For  this  reason,  in  part,  I  am  endeavoring  to  estab- 
lish principles  of  interpretation,  or  to  make  them 
known  in  a  wider  circle.  I  hold  myself  fully 
convinced  of  the  great  benefit,  which  a  wise  code 
may  bestow  upon  a  nation,  if  made  at  the  proper 
period  of  maturity  of  a  nation  for  that  purpose  ;  if 
it  contain  the  essence,  the  settlement,  perfection, 
improvement,  and  expansion,  of  the  law,  already 
existing  in  some  shape,  way,  or  form,  and  be  not  a 
futile  invention  of  the  closet ;  and  if  the  law-makers 
do  not  believe  thereby  to  forestall  all  future  expan- 
sion of  the  law.  A  code  is  not  a  herbarium,  in 
which  we  deposit  law  like  dried  plants.  Let  a 
code  be  the  fruit  grown  out  of  the  civil  life  of  a 
nation,  and  containing  the  seed  for  future  growth. 


CHAPTER      II  . S  ECTION      XIV.  45 

The  impossibility  of  closing  the  law,  as  it  were,  has 
already  been  acknowledged.  In  France,  and  in 
Prussia  many  large  volumes  of  complements  (Er- 
gdnzungen)  have  been  officially  published,  and 
are  annually  adding  to  the  code. 

Never  has  interpretation  been  dispensed  with ; 
never  can  it  be  dispensed  with.  This  necessity  lies 
in  the  nature  of  things,  of  our  mind  and  our  lan- 
guage ;  and  in  those  countries  where  codes  have 
been  established,  as  in  France,  Bavaria,  Austria, 
Prussia,  &c.,  some  authority  is  always  designated 
from  which,  in  doubtful  cases,  explanations  shall  be 
obtained;  as  the  council  of  state,  the  minister  of 
justice,  or  some  law  committee  appointed  for  that 
purpose. 

XIV.  The  Austrian  civil  code,  introduction, 
paragraph  8,  says,  '  The  lawgiver  alone  has  the 
authority  of  giving  an  interpretation  of  general  and 
binding  authority.  An  interpretation  of  this  sort  is 
to  be  appUed  to  all  cases  yet  to  be  decided,  if  the 
lawgiver  does  not  add  expressly,  that  his  interpreta- 
tion shall  not  apply  to  the  decision  of  those  cases 
which  treat  of  actions  done,  or  rights  claimed^ 
before  the  interpretation  took  place.' 

The  Prussian  code  says,  introduction,  paragraph 
47,  *  If  the  judge  finds  the  proper  sense  of  tlie  law 


46  HERMENEUTICS. 

ambiguous,  he  has  to  inform  the  law  committee  of 
his  doubts,  and  to  ask  for  its  decision,  without,  how- 
ever, mentioning  the  Htigating  parties.'  Paragraph 
48,  '  The  judge  of  inquiry  is  bound  to  found  his 
decision  in  the  case  upon  the  judgment  of  the  law 
committee  ;  the  parties,  however,  retain  their  right 
of  resorting  to  the  usual  remedies.' 

Several  of  these  provisions  have  been  adopted 
from  the  Roman  law.  The  Roman  Emperor 
decided  doubtful  cases,  which  had  been  reported  to 
him  in  writing,  by  '  decrefa.'  See  Li.  1.  ff  de 
Const.  Princ.  L.  fen.  pr,  de  Legib.  See,  also,  1 
Blackstone,  59. 

The  civilians  say,  '  Est  autem  non  raro  necessaria 
legis  interpretatio  ;  quam  solus  quidem  facit  legisla- 
tor, in  quantum  interpretatio  vim  legis  habitura  est. 
Quo  respicit,  quod  scriptum  est,  uti  leges  condere, 
ita  et  easdem  interpretari,  solo  imperio  dignum  esse.' 
Voet  Comment,  ad  Pandectas,  Li.  Tit.  IIL  18,  and 
every  other  commentator  of  the  Corpus  Juris. 

The  late  Mr.  Edward  Livingston  provides  in  his 
penal  code  that  '  if  any  penal  law  shall  be  so  inac- 
curately drawn,  as  to  bring  within  its  penalty  an  act 
that  it  would  not,  in  the  opinion  of  the  court,  have 
been  the  intention  of  the  legislature,  so  to  punish, 
the  accused  must  be  acquitted  ;  but  the  court  shall 
report    such   case   to   the   legislature  at   their  next 


CHAPTER      II. SECTION       XIV.  47 

session,  or  within  eight  days,  if  they  be  in  session.' 
Code  of  crimes  and  punishments,  Book  I.  chap.  1, 
art.  9,  or  page  367  of  his  system  of  penal  law  for 
the  State  of  Louisiana,  Philadelphia,  1833.  See, 
also,  his  introductory  report  to  the  code  of  crimes 
and  punishments,  ibid.  p.  139.  As  to  interpretation 
in  genera],  it  seems  evident  that  Mr.  Livingston 
relied  too  much  on  the  possible  perspicuity  of  human 
speech.  He,  as  well  as  Mr.  Jeremy  Bentham, 
appears  not  to  have  a  perfectly  correct  idea  of 
human  language,  and  its  exact  relation  to  things  and 
thoughts.  They  seem  to  have  imagined  that  the 
same  degree  of  clearness  of  speech,  which  we  find 
in  mathematics,  might  be  obtained  in  all  branches, 
forgetting,  perhaps,  in  how  limited  a  circle  mathe- 
matics move,  or  they  would  lose  at  once  the 
character  of  absolute  distinctness.  Having  said 
thus  much,  we  cannot  leave  this  topic,  without 
guarding  ourselves  against  a  misapprehension  that 
we  undervalue  the  merits  of  these  two  reflecting 
men.  No  lawyer,  or  politician  ought  to  remain 
unacquainted  with  their  works,  for,  whatever  reason 
he  may  find  to  dissent  from  them,  in  many  particu- 
lars, he  will  find  enough  worthy  of  being  gathered 
and  stored  up.  We  have  frequently  found  that 
their  works  are  treated  with  a  degree  of  supercilious- 
ness, which  can  be  explained  only  by  a  want  of 
acquaintance  with  them. 


48  HERMENEUTICS. 

XV.  If  these  various  authorities  have  the 
power  of  interpretation,  and  if  this  interpretation 
has  effect  not  only  for  the  future,  but  also  upon  the 
case,  respecting  which  the  doubt  arises,  as  is  the 
case  with  the  several  nations  above  mentioned,  then 
the  English  and  Americans  consider  this  manner  of 
interpreting  contrary  to  their  constitutional  spirit. 
It  approaches,  in  their  opinion,  too  much  to  the 
dangerous  union  of  the  attributes  of  the  legislator 
and  the  judge ;  though,  strange  to  say,  this  very 
fear,  so  just  and  salutary  in  its  kind,  has,  in  some 
cases,  led  precisely  to  the  end  that  was  to  be 
avoided.  For  the  many  constructive  offences,  for 
example,  in  the  old  English  law,  were  little  less 
than  the  product  of  legislating  judges.  The  inde- 
pendence of  the  judiciary  is  one  of  the  touchstones 
of  civil  liberty  ;  but  in  these  cases,  the  judges  did 
not  only  act  as  independent  judges  dependent  upon 
the  law,  but  they  left  their  proper  province,  and 
trespassed  upon  that  of  the  lawgiver.^ 

Those  who  imagine  that  the  uncertainty  of  law 
can  possibly  be  avoided,  by  avoiding  all  ambiguity 
of  language,  forget  that,  as  it  was  said  already, 
most  cases  present  a  compound  of  simple  cases,  and 
furthermore,  that  the   uncertainty  of  law  arises  not 


(1)  On  the  Independence  of  the  Judiciary,  and  the  Progresa 
of  Law,  see  Political  Ethics,  vol   I,  the  proper  chapters. 


CHAPTER      II  . S  ECTION      XVI.  49 

only  out  of  the  general  uncertainty  of  human  speech, 
but  frequently  also  out  of  the  ambiguous  terminology 
of  other  sciences,  arts,  &;c.  Should  the  law  settle 
before-hand  the  meaning  of  all  terms  ?  And  what 
is  to  be  done  with  reference  to  the  new  things  and 
relations,  which  are  discovered,  invented,  or  estab- 
lished, and  must,  in  suits  which  may  occur,  be 
classed  under  some  head  or  other  acknowledged  by 
the  law?  If  in  an  important  insurance  case  the 
question  has  arisen,  whether  the  Bermudas  belong- 
to  the  West  Indies  or  not,  and,  upon  inquiry,  it  was 
found  that  the  geographical  books  differed  on  this 
point,  was  the  ambiguity  in  this  case  the  fault  of  the 
law,  or  could  it  possibly  have  been  avoided  by  the 
wisest  foresight  of  the  most  profound  lawgiver,  or 
the  most  comprehensive  plan  of  a  code  ?  The  law 
could  only  then  be  absolutely  certain,  when  mankind 
had  ceased  to  be  a  living,  moving  society — a  society, 
wliose  very  existence  depends  upon  an  infinite  en- 
twining and  interweaving  of  countless  interests. 

XVI.  At  all  times  there  have  existed  many 
people  who,  seeing  how  often  in  matters  of  law,  as 
in  all  other  branches,  the  formality  is  seized  upon 
instead  of  the  spirit,  or  being  desirous  of  flattering 
unguarded  crowds,  declaim  against  the  niceties  of 
the  law,  and  with  it  against  careful  interpretation, 
5 


50  HERMENEUTIC  S. 

as  being  mere  subtleties  of  the  lawyers  to  harass 
litigating  parties  and  draw  their  own  profit  from  a 
protracted  administration  of  justice.  No  one  who 
knows  the  least  cf  the  history  of  judicial  adminis- 
tration, or  has  had  an  opportunity  to  observe  it  in 
some  countries  at  the  present  time,  will  venture  to 
deny,  that  no  branch  of  government  has  been  at 
some  periods  and  is  to  this  day  in  some  countries — 
witness  for  instance  Spain  and  the  Spanish  colonies, 
or  Germany  at  the  time  of  the  Peasants  War,  or 
England  when  the  Star  Chamber  flourished  most, 
for  instance  under  Charles  I. — more  scandalously 
diverted  from  its  real  course,  has  been  a  greater 
evil  to  the  community,  for  the  weal  of  which  alone 
it  is  established,  than  the  judiciary  department. 
Lawyers  have  at  times  formed  an  almost  invincible 
legion  of  harpies.  But  in  viewing  evils  and  endea- 
voring to  find  remedies,  we  must  carefully  avoid  the 
creating  of  equally  great  or  greater  ones.  Again 
and  again  have  the  people  been  told  to  throw  oft' 
their  fetters,  and  to  have  justice  done  by  plain  men 
of  common  sense,  and  unsophisticated  minds.  From 
ancient  times  down  to  the  latest,  to  our  own  period, 
it  has  been  asserted,  that  if  the  real  question  were 
to  award  true  justice  according  to  the  simple  merits 
of  the  case,  and  not  to  satisfy  technicalities,  the 
difficulty   would    not  be   great   and   lawyers   might 


CHAPTER     11.  SECTION     XVI.  51 

probably  be  dispensed  with.  These  persons  desire, 
in  fact,  a  patriarchal  administration  of  justice — the 
worst  of  all  justice  beyond  the  family  circle  and  in 
a  society  at  all  advanced  in  civilization.  If  we  ex- 
amine their  desire  more  closely  we  shall  find  thai 
nothing  less  is  demanded  than  constructive  justice, 
constructive  laws,  constructive  verdicts  and  con 
structive  penalties,  or  which  is  equally  bad,  the 
substitution  of  individual  feelings  and  views  for  the 
general  rule  and  even  law.  Nay,  they  substantially 
desire  ex  post  facto  justice  declared  permanent. 
The  declamations  against  law  and  lawyers  rest  es- 
sentially upon  the  same  erroneous  principle,  upon 
which  absolute  monarchists  found  their  claims  and 
desires.  They  wish  for  a  paternal  government,  a 
monarch  who  may  rule,  untrammelled  by  fundamen- 
tal laws,  according  to  the  fatherly  desire  of  his  heart. 
Let  the  king  be  unfettered  to  do  good,  let  nothing 
bind  him  but  his  conscience  ;  let  him  be  responsible 
to  no  one  but  his  God.  All  very  fine — it  is  the 
Chinese  rule — parental  care,  filial  obedience — only., 
do  not  talk  any  longer  of  right,  of  justice. 

It  is  so  frequently  forgotten  that  there  are  two 
parties  in  questions  of  justice,  and  what  seems  so 
uncommonly  plain  to  the  one,  that  no  possible  doubt 
can  exist  according  to  his  opinion,  does  by  no  means 
present  itself  in  the  same  light  to  the  other.     Some 


52  HERMENEUTICS. 

acts  are  lawful  in  the  day  time,  but  not  so  during 
night ;  or  they  are  less  punishable  if  done  during 
the  day,  than  otherwise.  If  the  law  at  the  same 
time  says  that  night  shall  be  from  sunset  to  sunrise, 
it  seems  to  be  as  plain  as  human  language  can  be. 
Yet  there  were  not  long  ago  two  parties  contending 
in  an  Irish  court,  the  one  maintaining  that  sunrise 
means,  with  regard  to  the  place  in  question,  the  ris- 
ing of  the  sun  above  the  neighboring  mountains, 
while  the  other  partly  insisted  that  sunrise  means  the 
time  which  is  indicated  as  such  in  the  almanac. 
Both  parties  probably  thought  that  nothing  could  be 
plainer  than  the  respective  view  which  each  took, 
for  the  very  reason  that  it  was  of  great  importance 
to  each  to  carry  his  view.  In  England,  it  has  been 
settled  by  act  of  parliament,  in  1837,  that  night, 
with  regard  to  burglary,  comprehends  the  space  of 
time  from  nine  in  the  evening  till  six  in  the  morning, 
all  the  year  round.  But  what  is  nine  o'clock  ?  A 
life  may  depend  upon  showing  that  a  certain  act  was 
done  at  half  past  eight  and  nine  o'clock. 

The  freer  a  country,  the  more  necessary  becomes 
interpretation.  For  one  of  the  main  ingredients  of 
civil  liberty,  and  at  the  same  time  one  of  its  greatest 
blessings,  is  the  protection  against  individual  passion, 
violence,  views,  opinions,  caprice  or  well  meant  but 
disturbing    interference — the     supremacy    of   law. 


CHAPTER     II  . S  E  C  T  1  O  N     XVI.  5o 

This,  however,  involves  the  condition  that  laws  once 
made,  must  be  administered  by  others  than  those  who 
made  them,  or  are  making  new  ones.  Without  it,  the 
law  ceases  to  be  a  guarantee  ;  but  if  the  making  and 
administeringare  separate,  it  is  necessary  that  the  lawi^ 
be  interpreted,  and  to  do  this  justly  and  conscien- 
tiously, the  ministers  of  the  law  must  proceed  by 
proper,  safe  and  sound  rules. ^  In  those  states  where 
the  law  making  power  is  the  same  with  the  law  ad- 
ministering, interpretation  in  the  highest  spheres  of 
judicial  action  is  comparatively  unimportant ;  for  the 
will  of  the  supreme  power  may  at  any  time  be  sub- 
stituted for  the  law,  or  may  decide  any  doubtful  case 
according  to  whatever  seems  expedient  to  it. 


(1)  Connected  with  this  fact  is  the  other,  which  1  have  touched 
upon  in  vol.  i.  of  the  Poht.  Ethics,  that  no  country  has  risen  in 
pohtical  civiHzation  without  the  institution  of  the  advocate. 
Indeed,  its  very  existence  proves  a  considerable  step  in  civili- 
zation, because  it  shows  not  only  that  the  judge  being  versed  in 
the  law,  an  equal  chance  shall  be  given  to  the  litigating  or  ac- 
cused party  ;  in  my  opinion,  it  indicates  something  more;  it 
manifests  a  degree  of  acknowledgment  that  the  law  shall  be  the 
immutable  rule — a  rule  above  the  judge,  not  one  within  his 
breast.  When  the  European  race  rose  out  of  the  confusion  of 
feudal  independence,  and  law  became  gradually  acknowledged 
as  the  supreme  rule,  and  yet  the  subject  not  being  properly  un- 
derstood, and  when,  as  the  same  dialectic  subtlety  which  had 
stolen  into  all  branches,  into  philosophy  as  well  as  theology,  the 
general  bent  of  the  European  mind  very  naturally  manifested 
itself  likewise  in  the  department  of  the  law.  Lawyers  actually 
became,  in  many  instances,  the  perverters  of  right,  instead  ot 
being  its  protectors.  Satire  was  directed  on  all  sides  against 
them.  Not  a  witty  poet  who  did  not  discharge  liis  arrows 
against  them,  not  a  carnival  in  which  they  were  not  ridiculed. 
and  not  unjustly  so.     But  let  us  not  forgot  that  precisely  the 

5* 


54  HERMENEUTICS. 


came  amount  of  satire,  at  the  same  period,  was  directed  in  the 
same  vehicles  against  matrimony.  Does  any  one  of  us,  never- 
theless, doubt  the  necessity  of  marriage  as  the  very  first  element 
of  civilization?  Lawyers  have  at  times  pressed  upon  society 
like  a  very  night  mare.  They  and  the  ministers  of  the  church 
have  been  the  worst  counsellors  of  tyranny,  the  worst  flatterers 
of  absolutism,  but  let  us  weigh  tne  matter  well,  and  I  believe 
we  shall  come  to  the  conclusion  that  the  cause  of  liberty  owes 
to  lawyers  likewise  infinite  gratitude.  Certainly  it  is  a  fact,  that 
if  English  tyranny,  in  whatever  character  it  showed  itself,  has 
been  supported  by  lawyers,  the  cause  of  British  liberty  has  been 
rescued  in  a  great  measure  by  them. 


CHAPTER  III. 


Construction. — Its  Definition. — Twofold  Application  of  this 
Definition. — Necessity  of  Construction,  when  Interpretation 
ceases  to  avail. — Necessity  of  distinguishing  between  Inter- 
pretation and  Construction. — Instance. — Doctrine  of  Cy-pres. 
Science  of  Hermeneutics. — Derivation  of  the  word. — Con- 
struction, although  dangerous,  yet  indispensable. — Different 
Species  of  Interpretation,  to  arrive  at  the  True  Sense. — Close 
Interpretation. — Literal  Interpretation  is  an  inadmissible 
Term. — Instances  of  pretended  Literal  Interpretation. — Ex- 
tensive Interpretation. — Liberal  Interpretation  not  a  good 
Terrr). — Extravagant  Interpretation. — Limited  and  Free  In- 
terpretation.— Predestined  Interpretation. — Artful  Interpreta- 
tion,— Authentic  Interpretation. — Different  Species  of  Theo- 
logic  Interpretation. — Close,  Comprehensive,  Transcendant. 
Extravagant  Construction. — Indemnity  Bills. 

I.  The  definition,  which  has  been  given  of  the 
term  interpretation,  shows  that  it  can  only  take 
place,  if  the  text  conveys  some  meaning  or  other. 
It  happens,  however,  not  unfrequently,  that  in  com- 
paring two  different  writings  of  the  same  individual, 
or  body  of  men,  they  are  found  to  contain  contra- 
dictions, and  yet  are  not   intended  to  contradict  one 


56  hKrmeneutics. 

another.  Or  it  happens  that  a  part  of  a  writing  or 
declaration  contradicts  the  rest,  for  instance,  some 
provisions  of  laws  issued  even  by  so  high  a  body  as 
the  British  parliament.  When  this  is  the  case,  and 
the  nature  of  the  document,  declaration,  or  whatever 
else  it  may  be,  is  such  as  not  to  allow  us  to  consider 
the  whole  as  being  invahdated  by  a  partial  or  other 
contradiction,  we  must  resort  to  construction.  Con- 
struction is  likewise  our  guide,  if  we  are  bound  to 
act  in  cases  which  have  not  been  foreseen,  by  the 
framers  of  those  rules,  by  which  we  are  neverthe- 
less obliged,  for  some  binding  reason,  faithfully  to 
regulate,  as  well  as  we  can,  our  actions  respecting 
the  unforeseen  case  ;  for  instance,  when  we  have  to 
act  in  politics  bound  by  a  constitution  in  a  case 
which  presents  features  entirely  new  and  unforeseen. 

II.  Construction  is  the  drawing  of  conclusions 
respecting  subjects,  that  lie  beyond  the  direct  ex- 
pression of  the  text,  from  elements  known  from  and 
given  in  the  text — conclusions  which  are  in  the  spirit, 
though  not  within  the  letter  of  the  text. 

Thus  we  say,  '  you  cannot  construe  his  refusal 
into  a  general  unkind  disposition  towards  you,'  which 
means,  you  cannot  draw  the  conclusion,  that  the 
utterer  is  unfavorably  disposed  to  you  (the  subject 
which  lies  beyond  the  direct  expression  of  the  text) 


CHAPTER     III. SECTION    II.  57 

from  the  specific  refusal  in  the  present  case  (the 
elements  known  and  given  in  the  text.) 

In  politics,  construction  signifies  generally  the 
supplying  of  supposed  or  real  imperfections,  or  in- 
sufficiencies of  a  text,  according  to  proper  principles 
and  rules.  By  insufficiency,  we  understand,  both 
imperfect  provision  for  the  cases,  which  might  or 
ought  to  have  been  provided  for,  and  the  inadequate- 
ness  of  the  text  for  cases  which  human  wisdom  could 
not  foresee,  as  for  instance,  the  application  of  a  very 
ancient  charter  to  cases  arising  out  of  entirely  and 
radically  new  relations,  which  have  since  sprung  up, 
and  which  cases,  nevertheless,  clearly  belong  to  that 
province  of  human  actions  for  which  the  charter  was 
intended. 

Tf  we  apply  the  above  definition  of  construction 
to  texts  of  inferior  authority  or  importance,  which 
partially  militate  with  the  demands  of  superior  au- 
thority, we  shall  see,  that  construction  is  the  causing 
of  the  text  to  agree  and  harmonize  with  the  demands 
or  principles  of  superior  authority,  although  they 
are  not,  according  to  the  immediate  and  direct  mean- 
ing of  the  words  constituting  the  text,  contained 
in  it. 

It  is,  as  will  be  seen  presently,  construction  alone 
which  saves  us,  in  many  instances,  from  sacrificing 
the  spirit  of  a  text  or  the  object,  to  the  letter  of  the 


58  H  E  RMENEUTIC  S. 

text,  or  the  means  by  which  that  object  was  to  be 
obtained,  and  without  construction,  written  laws,  in 
fact  any  laws  or  other  texts,  containing  rules  of  ac- 
tions, specific  or  general,  would,  in  many  cases, 
become  fearfully  destructive  to  the  best  and  wisest 
intentions,  nay,  frequently,  produce  the  very  oppo- 
site of  what  it  was  purposed  to  effect. 

III.  The  definition  which  has  been  given,  in- 
volves the  fact  that  the  constructor  is  not  allowed  to 
proceed  without  rule  or  arbitrarily ;  he  has  to  draw 
conclusions  (of  course  correct  and  faithful  ones) 
from  the  elements  given  in  the  text.  This,  if  prop- 
erly analyzed  or  applied,  gives  us  all  the  necessary 
rules  of  true  construction. 

The  proper  principles  of  construction  are  those 
which  ought  to  guide  us  in  good  faith  and  conscience. 
They  may  be  twofold,  according  to  what  has  been 
seen  in  section  ii : 

1 .  If  the  text  is  itself  a  declaration  of  the  funda-. 
mental  principles,  which  w^e  are  bound  to  follow  in 
a  certain  sphere  of  actions,  and  of  certain  funda- 
mental forms,  which  are  to  regulate  our  actions,  in 
this  case,  construction  signifies  the  discovery  of  the 
spirit,  principles,  and  rules,  that  ought  to  guide  us 
according  to  the  text,  with  regard  to  subjects,  on 
which  that  declaration  is  silent,  but  which  neverthe- 


CHAPTER     III. SECTION     III,  59 

less  belongs  to  its  province.  If,  for  instance,  a 
political  constitution  or  charter  has  been  adopted  or 
granted,  to  regulate  our  political  actions,  and  a  case 
occurs,  which  has  not  been  directly  provided  for,  but 
which  is  of  an  undoubted  political  character,  we 
have  faithfully  to  search  for  its  true  spirit,  and  act 
accordingly  in  the  case  under  consideration.  Anal- 
ogy, or  rather  parallel  reasoning^  in  this  signification 
of  construction,  is  the  essential  means  of  effecting  it, 

2.  Or  there  may  exist  principles  or  rules  of  supe- 
rior authority,  and  the  problem  of  construction  then 
is  to  cause  that  which  is  to  be  construed  to  agree 
with  them.  In  this  case  the  principles  and  rules  of 
superior  authority  are  the  '  subjects  that  lie  beyond 
the  direct  expression  of  the  text '  mentioned  in  the 
definition. 

For  instance,  morality  is  one  of  the  chief  ends  of 
all  human  life ;  without  it  no  state  can  exist.  This 
is  the  superior  principle.  If,  therefore,  a  testator 
leaves  a  will,  containing   provisions   of  an   immoral 

(!)  It  will  be  observed  that  analogy  in  this  case  signifies 
something  very  different  from  that  reasoning  by  analogy,  against 
which  the  author  declared  himself  strongly  in  his  Pol.  Ethics. 
There  he  spoke  against  reasoning  on  comparisons  of  totally 
different  things ;  here  he  speaks  of  subjects  belonging  to  the  same 
sphere.  Indeed,  analogy  in  the  present  case  means  nothing  more 
than  a  reasoning  by  proportion.  In  the  case,  provided  for  by 
law.  or  decided  already,  we  have :  If  A  and  B  exist,  then  D 
shall  take  place.  In  thecase  to  be  construed  we  have  E,  similar 
to  A,  and  F  similar  to  B,  hence  let  G  be  similar  to  D,  in  the  same 
proportion. 


60  H  E  R  M  E  N  E  U  T  I  C  S . 

character,  striking  out  these  provisions  is  called  con- 
struing it,  i.  e.  making  it  harmonize  with  the  general 
and  great  object  of  all  government,  without  thereby 
invalidating  the  whole  will.  Or  if  a  law  be  passed, 
parts  of  which  are  contrary  to  the  fundamental  law 
of  the  state,  it  is  called  construing  the  law,  when  the 
proper  judges  declare  these  parts  to  be  invalid. 
This  is  acknowledged  in  the  United  States,  and  in  a 
similar  manner  does  the  civil  law  declare  that : 

'  The  judge  shall  be  guided  by  the  strictness  of 
the  law,  and  not  consider  what  the  emperor  has  de- 
clared against  the  law.' — C.  III.  Tit.  1,  de  jud. 
11.     Or 

'  Quae  facta  laedunt  pietatem,  existimationcm,  ver- 
ecundiam  nostram  et  (ut  generaliier  dixerim)  contra 
bonos  mores  fiunt,  nee  facere  nos  posse  credendum 
est.' — [Papineau's  Digest,  L.  xxviii.  t.  7,  15. 

If  the  codes  of  some  countries  declare,  that  if  in 
certain  cases  the  judge  can  find  no  law  precisely  ap- 
plicable, he  shall  be  guided  by  the  spirit  of  the 
provisions  enacted  for  those  cases,  whicli  resemble 
most  that  under  consideration,  they  authorize  con- 
struction according  to  the  first  part  of  our  first 
definition.  The  Austrian  code  prescribes  the  mode 
just  mentioned.  See  the  same  Introduction,  7.  In 
penal  judicature  no  legal  action  can  take  place  in  a 
case  unprovided  for  by  law  ;  yet  the   Chinese  c<^He 


CHAPTER     III. SECTION      IV.  61 

applies  construction  of  ttiis  sort  even  to  offences  and 
crimes.  See  Sir  George  T.  Staunton's  Penal  Code 
of  China,  sect.  XLIV.  p.  43. 

Also  treaties  are  sometimes  made,  defining  the 
boundaries  of  countries  imperfectly  known,  which, 
'  when  they  come  to  be  acted  upon,  are  found  to  con- 
tain language  not  applicable  to  the  actual  state  of 
things,  in  which  case  we  must  have  recourse  to  con- 
struction. 


IV.  In  the  most  general  adaptation  of  the  term, 
construction  signifies  the  representing  of  an  entire 
whole  from  given  elements  by  just  conclusions. 
Thus  it  is  said,  '  a  few  actions  may  sometimes  suffice 
to  construe  the  whole  character  of  a  man.' 

It  was  not  without  repeatedly  weighing  the  sub- 
ject, that  I  first  ventured  upon  the  distinction  between 
interpretation  and  construction  ;  for,  if  clear  distinc- 
tion is  one  of  the  efficient  means  to  arrive  at  truth, 
it  is  equally  true  that  subtleties  impede  instead  of 
aiding  in  seizing  upon  it.  Many  political  contests, 
however,  in  which  both  parties  seemed  to  me  equally 
honest,  as  well  as  frequent  disputes  in  law,  led  me 
to  the  distinction,  and  I  had  the  great  satisfaction  of 
finding  that  since  the  first  publication  of  the  present 
tract,  two  of  our  most  distinguished  lawyers  have 
6 


62  H  E  R  M  E  N  E  U  T  I  C  S  . 

fully  concurred  in  the  distinction  between  the  two, 
and  have  adopted  it. 

It  appears  that  many  law  cases  would  be  settled 
W'ith  greater  ease,  and  to  the  greater  satisfaction  of 
the  interested  parties,  if  this  distinction  were  strictly 
kept  in  view.  We  have  first  to  settle  whether  con- 
struction is  at  all  admissible,  or  whether  it  be  abso- 
lutely indispensable,  as,  I  believe  it  has  been  seen, 
in  many  cases,  it  actually  is.  After  this  we  have  to 
settle  whether  in  the  given  case,  interpretation 
suffices,  or  whether  we  must  have  recourse  to  con- 
struction.    The  following  case  is  in  point : 

A  gentleman  whom  we  may  call  Thomas  Gumming, 
a  bachelor,  and  a  native  of  Great  Britain,  accumulated 
a  considerable  fortune  in  the  United  States  ;  he  died, 
and  his  testament  showed  that  he  had  bequeathed  a 
large  sum  to  '  his  nephew,  Thomas  Gumming,'  in 
England.  The  latter  was  dead  at  the  time  of  the 
making  of  his  uncle's  will  in  America,  leaving,  how- 
ever, an  only  child,  likewise  called  Thom.as  Gum- 
ming ;  but  the  death  of  the  one  and  the  birth  of  the 
other  were  equally  unknown  to  Thomas  Gumming, 
tlie  eldest,  at  the  time  when  he  made  his  testament, 
^and  down  to  the  time  of  his  decease.  Now  it  was 
contended  that  T.  Gumming,  the  testator,  did  not 
leave  the  sum  to  T.  Gumming,  the  nephew,  be  be- 
ing already  dead ;  and  that  the  birth  of  the  youngest 


CHAPTER     III  . S  ECTION     IV.  63 

Gumming,  not  yet  being  known  to  the  testator,  he 
could  not  have  meant  him.  It  is  evident  that  ac- 
cording to  the  true  import  of  the  term  interpretation, 
the  argument  was  good  ;  for  according  to  the  true 
meaning  of  the  testator's  words,  that  is  according  to 
the  meaning  which  he  attached  to  them,  he  cannot 
have  meant  T.  Gumming  the  youngest.  But  there 
being  no  T.  Gumming,  whom  the  testator  meant,  in 
existence,  the  question  becomes,  how  shall  we  draw 
our  conclusions  and  apply  them  to  the  subject,  which 
lies  beyond  the  direct  expression  of  the  text,  from 
elements  known  by  and  given  in  the  text, — the  tes- 
tament in  the  present  case  ?  Is  the  testament  our 
guide  or  not  ?  It  evidently  is ;  then  construction 
becomes  necessary  if  interpretation  is  insufficient, 
and  the  elements  afforded  us  by  the  text  will  lead 
us  to  the  just  and  true  conclusion,  'that  Thomas 
Gumming  the  eldest,  meant  to  leave  the  respective 
sum  to  the  English  branch  of  his  family,  and  that 
T.  Gumming  the  youngest,  ought  to  receive  it. 

The  whole  doctrine  of  Gy-pres  belongs  to  con- 
struction.    Sec  Story  on  Equity,  2,  415. 

Nor  does  the  distinction  do  violence  to  language, 
whether  we  view  the  two  terms  as  used  in  common 
life,  or  respecting  their  etymology  ;  for  construction, 
from  construere,  means  to  build  up,  from  con  and 
strm.     Lawyers  frequently  call  both  construction  ] 


64  HERMENEUTICS. 

divines,  on  the  other  hand,   use  interpretation  for 
both. 

V.  That  branch  of  science  which  estabhshesthe 
principles  and  rules  of  interpretation  and  construc- 
truction,  is  called  hermencutics,  from  the  Greek 
iQfirivevb)  to  explain,  to  interpret ;  and  the  actual  ap- 
plication of  them  exegesis,  from  the  Greek  ih^iyr/tng 
explanation.  Hermencutics  and  exegesis  stand  in 
the  relation  to  each  other  as  theory  and  practice. 

In  England  and  America  these  terms  are  generally- 
used  by  theologians  only,  but  the  Germans,  who  first 
brought  them  into  use,  apply  them  equally  to  philol- 
ogy and  divinity.  There  is  no  reason  why  this  term 
should  not  be  used  in  all  sciences,  in  which  interpre- 
tation and  construction  become  necessary,  in  short  in 
all  branches  in  which  we  are  bound  carefully  to  as- 
certain the  sense  of  words,  and  regulate  actions 
according  to  their  spirit  and  true  import. 

VI.  For  the  very  reason  that  construction  en- 
deavors to  arrive  at  conclusions  beyond  the  absolute 
sense  of  the  text,  and  that  it  is  dangerous  on  this 
account,  we  must  strive  the  more  anxiously  to  find 
out  safe  rules,  to  guide  us  on  the  dangerous  path. 
For,  although  dangerous,  w^e  cannot  possibly  escape 
it,  because  times,  relations,  things  change,  and  can- 
not be  foreseen  by  human  intellect,  nor  is  it  given  to 


CHAPTER     III  . S  ECTION     VII.         65 

any  man  to  provide  for  all  cases  already  existing,  or 
use  such  language  which  shall  leave  no  doubt.  Many 
things  are  dangerous,  yet  we  cannot  dispense  with 
them  nevertheless. 

It  lies  likewise  in  the  nature  of  things,  that  in 
many  cases,  interpretation  and  construction  must 
closely  approach  to  one  another,  still  the  distinctioji 
is  clear.  Food  and  poison  are  very  distinct  things, 
although  in  some  cases  they  approach  so  closely,  that 
it  would  be  difficult  to  decide  with  absolute  certainty, 
which  term  we  ought  to  choose. 

That  from  the  nature  of  interpretation  and  con- 
struction, since  they  signify  the  arriving  at  something 
certain  from  something  ambiguous  or  uncertain,  good 
faith  and  common  sense  are  indispensable  in  the  ap- 
plication of  the  principles  furnished  by  hermeneutics, 
to  the  complex  cases  of  practical  life,  is  evident. 
More  on  this  subject  will  be  presently  given. 

VII.  An  individual  may  use  some  words,  whicJi 
every  one  understands,  and  which  for  the  case  are 
sufficiently  clear  ;  but  if  you  were  to  ask  him  as  to 
the  exact  limits  to  which  he  wishes  to  see  his  re- 
marks extended,  or  to  put  to  him  a  number  of  case3 
in  progressive  connexion  with  each  other,  he  himseli 
will  be  doubtful  in  most  instances,  how  far  he  wouli' 
extend  the  application  of  his  remark.  The  conse 
6* 


66  HERMENEUTICS. 

quence  is,  that  interpretation  may  be  according  to 
the  more  or  less  comprehensive  sense,  whicii  we 
give  to  the  words  of  various  kinds,  not,  be  it  men- 
tioned here  in  anticipation,  that  the  object  of  inter- 
pretation can  ever  vary,  or  that  there  can  be  two 
true  meanings  in  any  text.  The  sole  legitimate 
object  of  all  interpretation  is  to  find  out  the  true 
sense  and  meaning,  not  to  impart  them ;  but  since 
this  true  sense  is  occult,  we  may  be  bound  to  use 
various  means  to  arrive  at  it  to  the  best  of  our  ability, 
and  according  to  the  conscientious  desire  of  finding 
the  true  sense.  Accordingly,  v.e  have  to  note  the 
following  different  species  of  interpretation. 

VIII.  Close  Interpretation  (interpretatio  restric- 
liva,)  if  just  reasons,  connected  with  the  formation 
and  character  of  the  text,  induce  us  to  take  the  words 
in  their  narrowest  meaning. 

This  species  of  interpretation  has  been  generally 
called  literal  interpretation,  a  term  inadmissible,  in 
my  opinion.  Literal  interpretation  ought  to  mean 
of  course,  that  which  takes  the  words  in  their  literal 
sense,  which  is  hardly  ever  possible,  since  all 
human  language  is  made  up  of  tropes,  allusionSj 
images,  expressions  relating  to  erroneous  conceptions, 
Sic,  for  instance,  the  sun  rises.  Literal  interpreta- 
tion would  signify,  moreover,  in  most  cases,  a  con- 


CHAPTER     III  . S  ECTION     VIII.       G7 

tradiction,  since  there  can  be  but  little  doubt  as  to 
the  meaning  of  a  sentence,  if  the  words  are  to  be 
taken  in  a  literal  signification,  and  thus  make  sense 
at  all.  Interpretation,  therefore,  would  be  superflu- 
ous. On  the  other  hand,  it  is  very  difficult  to  say 
where  the  literal  signification  of  a  word  ends,  and 
the  figurative  begins.  In  reading  Latin  no  one  would 
insist  that  the  literal  sense  of  Confutare  is  to  check 
boiling  water  by  pouring  in  cold  from  a  vessel  called 
futum,  ox  futis,  although  this  was  the  original  sig- 
nification. In  other  cases,  it  would  be  difficult  to 
say  what  is  the  literal  meaning.  Is  the  word  going, 
if  used  of  a  vessel  proceeding  from  one  place  to 
another,  used  in  its  literal  sense  or  not  ?  If  we 
substitute  original  meaning  for  literal,  we  find  at  once 
the  impropriety  of  the  term.  To  Give  is  a  word 
found  in  all  Teutonic  and  many  other  languages,  and 
is,  probably,  derived  from  the  ancient  word  GafF,  the 
hollow  of  the  hand,  so  that  the  original  meaning  is 
identical  with  our  word  to  Hand.  But  is,  on  this 
account,  the  expression  '  I  give,'  used  in  a  will,  to 
be  declared  void,  although  sound  reasons  may  pre- 
vail to  adopt  the  closest  possible  interpretation, 
because  the  testator,  being  dead,  cannot  any  longer 
give,  in  its  literal  sense,  something  to  another  person, 
because  he  cannot  use  any  longer  his  hands  ?  Or 
are  we  to  make  a  distinction  between  original  and 


68  HER  MENEU  TICS. 

literal  meaning  ?  If  so,  where  are  the  limits,  and 
what  possible  good  can  we  derive  from  it? 

These  remarks  are  not  without  practical  impor-^ 
tance.  Enormous  crimes,  and  egregious  follies  have 
been  committed  under  the  pretended  sanction  of 
literal  interpretation,  using  interpretation  as  a  means 
to  promote  certain  objects,  while  its  simple  and  only 
object  is  to  ascertain  and  fix  the  true  sense  of  a  text. 

When  that  poor  tavern  keeper  in  England,  whose 
inn  had  the  sign  of  a  crown,  was  sentenced  for 
treason,  because  he  had  jestingly  said,  that  he  had 
made  his  son  heir  to  the  crown,  his  judges  thought 
they  interpreted  literally,  and  maintained  that  it  was 
a  case  which  called  for  literal  interpretation.  Had 
they  used  the  term  close  interpretation,  they  could 
never  have  reached  the  life  of  the  poor  tavern 
keeper,  at  least  in  this  way.  For  the  closer  the 
interpretation  was  taken,  the  closer  it  would  have 
come  to  his  tavern  crown.  Literal  interpretation  is 
a  most  deceptive  term  ;  under  the  guise  of  strict  ad- 
herence to  the  words,  it  wrenches  them  from  their 
sense. 

If  we  understand  by  literal  interpretation,  a  spe- 
cies, which  by  way  of  adhering  to  the  letter,  substi- 
tutes a  false  sense  for  the  true  one,  it  has  no  more 
meaning  than  the  term  '  false  facts.'  It  is  false, 
deceptive,  or  artful  interpretation,  if  we  do  not  give 


CHAPTER     III. SECTION     VIII.        69 

that  sense  to  words  which  they  ought  to  have,  ac- 
cording to  good  faith,  common  sense,  the  use  which 
the  utterer  made  of  them,  he. 

The  canon  law  prohibits  the  ministers  of  the 
Roman  Cathohc  church  from  shedding  human  blood. 
Many  bishops  and  other  ecclesiastics  of  the  middle 
ages,  therefore,  who  could  not  resist  the  universal 
spirit  of  warfare  and  robbery  of  those  times,  for  in- 
stance, of  the  11th  and  12th  centuries,  fought  with 
maces,  without  thorns  or  points.  Philippe-de-Dreux, 
bishop  of  Beauvais,  for  instance,  a  redoubled  warrior, 
and  famous  for  his  robberies  and  cruelties,  killed  in 
the  battle  of  Bouvines,  every  one  he  could  reach 
with  his  mace.  Wulson,  author  of  the  Heroic  Sci- 
ence, speaks  of  this  usage  as  generally  received.-' 


(1)  See,  among  other  works,  Hisloire  Civile,  Physique  et 
Morale  de  Paris,  by  T.  A.  Dulaure,  Paris,  1825,3d  ed.  vol.  ii.  p. 
415  et  seq. 

According  to  a  similar  misinterpretation,  as  it  seems  to  me, 
the  same  law  was  held  to  prohibit  priests  from  practising  surgery, 
but  not  medicine,  as  they  frequently  did  in  earlier  times,  when 
priests  were  the  few  who  possessed  any  science  whatever.  If 
there  was  no  particular  reason  for  this  distinction,  which  I  do  not 
know,  the  fault  arose  out  of  the  omission  of  paying  attention  to 
the  Tisus  loquendi.  Single  words  were  taken  in  their  respective 
significations,  but  it  was  not  literal  interpretation  for  all  that. 
Shedding  blood  is  not  the  opening  of  veins  or  arteries,  but  the 
doing  it  with  violence  to  the  harm  of  the  wounded. 

Innumerable  dogmatic  aberrations  from  the  path  of  religion, 
have  had  and  have  their  origin  in  this  species  of  misinterpreta- 
tion. The  above  instance  brings  another  to  my  mind,  likewise 
belonging  to  the  history  of  the  catholic  church,  though  quite  as 
many  instances  may  be  found  in  law,  if  we  refer  to  the  time  of 
the  schoolmen. 


70  H  E  R  M  E  N  E  U  T  I  C  3  . 

IX.  Extensive  interpretation  (interpretatio  ex- 
tensiva,)  called  likewise  liberal  interpretation,  when 
it  inclines  towards  adopting  the  more  or  most  com- 
prehensive signification  of  the  word.  Extensive  or 
comprehensive  interpretation  seems  to  be  a  better 
term  than  liberal  interpretation.  The  latter  sounds 
as  if  a  disposition  of  the  interpreter  were  to  be  indi- 
cated, while  his  true  object  is  to  ascertain  the  exact 
meaning ;  at  least  the  term  ought  to  be  reserved  for 
those  cases  where  we  actually  strive,  for  some  reason 
or  other,  to  give  the  most  liberal  sense  to  a  set  of 
words,  for  instance  in  a  case  which  strongly  calls  for 
mercy,  though  the  law  is  distinct  and  demands  pun- 
ishment. 

Extravagant  interpretation  (interpretatio  excedens) 


It  was  one  of  the  monastic  punishments  to  wall  up  the  crimi- 
nal alive.  This  was  called  '  In  pace,'  at  least  with  the  Francis- 
cans, because  every  member  said :  In  pace  requiescat,  when  the 
fearful  ceremony  was  concluded,  and  the  last  brick  immured  the 
criminal,  never  to  return.  It  has  not  frequently  occurred,  but 
sometimes  it  actually  has.  The  annals  of  the  Franciscans  say 
that  even  their  saint  threatened  a  brother,  who  refused  to  visit  a 
leprous  man,  with  this  punishment.  The  reason  why  the  order 
preferred  this  punishment  was  because  :  Ecclesia  non  sitit  san- 
guinem  (the  church  thirsteth  not  for  blood)  ;  they  preferred, 
therefore,  this,  in  appearance,  less  violent  infliction  of  death. 
But  even  if  the  actual  infliction  of  death  were  less  violent  than 
hanging — although  most  persons  will  believe  that  immuring 
must  greatly  protract  the  last  agony  of  death,  and  give  full  time 
to  the  horrors  of  despair — the  interpretation  of  sitire  sanguinem 
would  not  be  more  correct,  simply  because  Sanguis  stands  here 
as  part  for  the  whole,  namely,  Death.  Ordres  monastiques, 
vol.  iii. 


CHAPTER     III  . S  ECTION     IX.  71 

is  that  mode  of  interpreting,  which  substitutes  such 
meaning  as  is  evidently  beyond  the  true  meaning  ; 
it  is,  therefore,  not  genuine  interpretation. 

Interpretation  may,  hkewise,  be  hmited  or  free. 

Free  or  unrestricted  (interpretation  soluta)  pro- 
ceeds simply  on  the  general  principles  of  interpreta- 
tion in  good  faith,  not  bound  by  any  specific  or 
superior  principle.  Limited  or  restricted  interpreta- 
tion (interpretatio  limitata)  takes  place,  if  other  rules 
or  principles  than  the  strictly  hermeneutic  ones, 
limit  us. 

If,  for  instance,  an  individual  were  to  say,  '  1 
neither  believe  nor  disbelieve  the  bible,  but  intend 
to  find  out  its  true  sense,  and  then  to  be  determined 
whether  I  shall  believe  in  it  or  not,'  it  would  be  un- 
restricted interpretation.  If,  however,  the  inquirer 
has  already  come  to  the  conclusion,  that  the  scrip- 
tures were  written  by  inspired  men,  that,  therefore, 
no  real  contradiction  can  exist  in  the  bible,  and  he 
interprets  certain  passages  accordingly,  which  prima 
facie  may  appear  to  involve  a  contradiction,  it  would 
be  limited  interpretation.  See  Ernesti,  Institutio 
Interpretis,  part  i.  section  i.  chap.  ix. 

All  proclamations,  orders,  &;c.  of  a  British  mon- 
arch or  the  government  of  the  United  States,  are 
subject  to  interpretation  restricted  or  limited  by  the 
acts  of  parliament  or  congress,  if  they  require  inter- 


72  HERMENEUTICS. 

pretation  at  all,  and  would   otherwise  clash   with 
these  acts. 

X.  Finally,  interpretation  may  be  predestined 
(interpretatio  predestinata,)  if  the  interpreter,  either 
consciously  or  unknown  to  himself,  yet  laboring  un- 
der a  strong  bias  of  mind,  makes  the  text  subservient 
to  his  preconceived  views,  or  some  object  he  desires 
to  arrive  at.  Luther,  in  his  work,  De  Papatu, 
charges  the  catholics  with  what  is  called  here,  pre- 
destined interpretation,  of  the  bible,  inasmuch  as  in 
his  view,  they  do  not  seek  for  the  true  meaning  of 
the  bible,  but  strive  to  make  it  subservient  to  thisir 
preconceived  dogmas.  This  peculiar  species  of 
interpretation  would  not  have  been  mentioned  here, 
for  it  is  not  genuine  interpretation,  were  it  not  so 
common  in  all  branches,  in  sciences  and  common 
life,  in  law  and  politics  not  less  than  in  religion,  with 
protestants  as  habitually  as  with  catholics,  so  that 
none  of  us  can  be  too  watchful  against  being  betrayed 
into  it.  It  corresponds  to  what  might  be  called  in 
ratiocination,  ex  post  facto  reasoning. 

A  peculiar  species  of  predestined  interpretation  is 
artful  interpretation  (interpretatio  vafer,)  that,  which, 
by  cunning  and  art,  attempts  to  show  that  the  text 
means  something,  which  was  not  according  to  the 
interpreter's  own  knowledge  the  meaning  of  the  au- 
thor or  utterer.     Artful  interpretation  is  not  always 


CHAPTER     III  . S  ECTIONX.  73 

immoral.  A  legal  counsel  is  understood  to  produce 
everything  favorable  that  can  be  brought  to  bear 
upon  the  case  of  his  client,  so  that,  the  same  being 
done  on  the  other  side,  all  that  can  be  said  for  and 
against  the  subject,  may  be  brought  before  the  judges. 
That  counsel  ought  not  to  swerve  from  the  common 
principles  of  morality  in  this,  as  in  any  other  case, 
is  evident.  We  shall  give  in  this  woi'k  our  views  of 
the  duties  of  legal  counsel. 

The  same  remark  does  not  apply  to  political  party 
affairs,  for  this  simple  reason,  that  in  matters  of  law 
final  judgment  is  given  by,  and  the  arguments  on 
both  sides  are  stated  before,  the  same  judges  at  the 
same  time,  and  before  judges  who  form  no  party 
themselves,  or  belong  to  none  of  the  contending 
parties.  The  comparing  of  political  party-matters 
either  to  legal  strifes  or  to  real  warfare  is  unsound  in 
principle,  and  has  created  great  mischief.  It  must 
be  counted  among  the  many  subjects,  which  have 
done  infinite  injury  to  society  by  a  confusion  of  ideas 
and  words,  and  a  misapplication  of  similes  in  their 
departments.  If  we  see  violent  party  struggles,  and 
the  advocates  on  both  sides  maintaining  the  authority 
of  the  same  instrument,  perhaps  of  the  same  provision, 
let  us  ask  ourselves,  which  of  the  two  proceeds  on 
genuine  and  which  on  artful  interpretation,  which 
proceeds  upon  the  instrument  itself,  and  which  has 
7 


74  HERMENEUTICS. 

some  distant  object  beyond  it,  or  starts  from  some 
preconceived  views  or  interested  motives.  Fre- 
quently this  inquiry  alone  will  contribute  essentially 
to  our  arriving  at  the  real  state  of  things. 

XI.  Authentic  interpretation  is  called  that  which 
proceeds  from  the  author  or  utterer  of  the  text  him- 
self; properly  speaking,  therefore,  it  is  no  interpre- 
tation, but  a  declaration.  If  a  legislative  body,  or 
monarch,  give  an  interpretation,  it  is  called  authentic, 
though  the  same  individuals  who  issued  the  law  to 
be  interpreted,  may  not  give  the  interpretation  ;  be- 
cause the  successive  assemblies  or  monarchs  are 
considered  as  one  and  the  same,  making  the  law  and 
giving  the  interpretation  in  their  representative,  and 
not  in  their  personal  characters.  Authentic  inter- 
pretation, therefore,  need  not  always  be  correct, 
though  it  has,  if  formally  given,  binding  power. 
Still  it  may  be  reversed  by  a  subsequent  law. 

According  to  the  means  which  we  make  use  of  to 
assist  us  in  interpretation,  we  find  with  some  writers 
the  following  species :  interprctatio  usualis,  if  we 
interpret  on  the  ground  of  usage,  doctrinalis,  if  in  a 
scientific  way,  grammatica,  historica,  historico- 
grammatica,  logica.  Interpretatio  declarativa  is 
that  interpretation  which  settles  the  meaning  of  a 
term,  until  then  of  vague  or  ambiguous  signification, 


CHAPTER     III. SECTION     XII.        76 

e.  g.  the  word  game  having  been  used,  it  is  finally 
settled  what  animals  shall  be  classed  under  this  head, 
and  which  not. 

Some  authors,  for  instance,  Rutherforth,  have 
divided  interpretation  into  three  kinds,  literal,  ration- 
al, and  mixed.  These  terms,  however,  as  well  as 
many  of  the  above,  lose  greatly  in  their  importance, 
or  become  actually  inadmissible,  if  we  adhere  to  our 
definition  of  interpretation,  which  is  to  find  the  '  true 
sense.'  There  can  be  then  no  literal  sense,  and 
besides  it,  another.  A  single  word  may  signify  in- 
deed several  things,  and  in  order  to  determine  in 
which  sense  it  has  been  used  in  a  particular  passage, 
we  shall  be  obliged,  as  a  matter  of  course,  to  us© 
grammar,  etymology,  logic,  and  every  other  means, 
which  are  in  constant  use  among  men,  to  understand 
the  words  of  one  another.  This  has  been  clearly 
shown  as  early  as  by  Ernesti  in  his  Institutes  already 
cited.     See  sect.  XI.  I. 

XII.  Owing  to  the  peculiar  character  which  the 
bible  possesses,  as  a  book  of  history  and  revelation, 
and  the  relation  between  the  old  and  new  testaments, 
we  find  that  some  divines  ascribe  various  meanings 
to  the  same  passages  or  rites,  and  that  different  the- 
ologians take  the  same  passage  in  senses  of  an 
essentially   different  character.     We  hear    thus    o.( 


Td  HERMENEUTICS. 

typical,  allegorical,  parabolical,  anagogical,  moral 
and  accommodatory  senses,  and  of  corresponding 
modes  of  interpretation.  For  information  on  this 
subject,  the  reader  must  refer  to  works  on  theologic 
liermeneutics.  In  politics  and  law  we  have  to 
deal  with  plain  words  and  human  use  of  them  only. 
The  chief  subjects  we  have  to  interpret  or  con- 
strue, as  citizens,  are  spoken  words  or  entire  speeches, 
letters,  orders  and  directions,  deeds,  contracts,  wills, 
laws,  compacts  and  constitutions  or  charters,  declar- 
ing and  defining  fundamental  rights  or  privileges. 
Whether  we  are  lawyers  or  not,  we  may  be  called 
upon  to  vote  upon  subjects  requiring  the  interpreta- 
tion of  some  of  these  5  and  whether  we  shall  ever 
be  members  of  legislative  bodies  or  not,  every  citizen 
of  a  free  country  is  not  only  permitted  to  form  his 
opinion  upon  all  prominent  features  of  his  govern- 
ment, fundamental  laws,  public  men,  and  important 
measures,  but  it  is  his  duty  lo  do  so.  Every  citizen 
may  become  an  executor  of  a  will,  in  which  he  may 
be  called  upon  to  interpret  provisions,  which  materi- 
ally affect  the  well  being  of  large  numbers  of  un- 
protected orphans,  he  may,  in  times  of  great  impor- 
tance, find  himself  in  an  office  of  a  delicate  charac- 
ter, and  he  may  at  any  day  be  charged  to  decide 
upon  matters  of  grave  importance,  in  the  most  sa- 
cred  character  a  citizen   can  assume,  namely,  as  a 


CHAPTER     III. SECTION     XIII.  77 

juror.  It  will  be  found  necessary,  therefore,  for 
every  citizen  to  know  how  to  interpret  correctly  and 
faithfully,  and  however  brief,  compared  to  the  mag- 
nitude of  the  subject,  this  work  will  be,  I  shall 
nevertheless,  endeavor  to  lay  down  the  most  essen 
tial  principles,  sufficient  at  least  to  direct  attention, 
to  the  main  points. 

XIII.  Before  we  proceed  to  them  it  will  be 
necessary  to  settle  the  meaning  of  some  terms  re- 
specting construction.  Construction  is  either  close, 
comprehensive,  transcendant,  or  extravagant,  similar 
to  the  corresponding  species  of  interpretation. 

1 .  Close  construction  is  that  which  inclines  to  the 
directest  possible  application  of  the  text,  or  the  prin- 
ciples it  involves,  to  new  or  unprovided  cases,  or  to 
contradictory  parts,  in  short,  to  subjects  which  lie 
beyond  the  words  of  the  text. 

2.  Comprehensive  construction  is  that  which  in- 
clines to  an  extensive  apphcation  of  the  text,  or  the 
principles  it  involves,  to  new,  unprovided,  or  not 
sufficiently  specified  cases  or  contradictions. 

3.  Transcendant  construction  is  that  which  is  de- 
rived from,  or  founded  upon,  a  principle  superior  to 
the  text ;  and,  nevertheless  aims  at  deciding  on  sub- 
jects belonging  to  the  province  of  that  text. 

When,  in    August,  1835,  the  postmaster  of  tho, 
7* 


78  HERMENEUTICS. 

city  of  New  York  applied  to  the  postmaster  general 
of  the  United  States  for  instruction,  respecting  cer- 
tain incendiary  publications,  sent  by  persons,  usually 
called  abolitionists,  to  his  post  office  to  be  transmit- 
ted to  the  south,  and  retained  by  him  (the  New 
York  postmaster,)  the  postmaster  general  answered, 
that  there  was  no  part  of  the  post  law,  which  would 
authorize  the  post  establishment  to  decline  tlie  car- 
riage of  newspapers  or  other  publications  on  account 
of  their  contents.  Such  interference  would,  in  fact, 
amount  to  an  interference  with  the  '  freedom  of 
speech,  or  of  the  press,'  so  distinctly  guaranteed  by 
the  Constitution  of  the  United  States.  See  Mr. 
Calhoun's  Report  on  the  Attempts  to  circulate 
through  the  mail  inflammatory  Appeals,  Stc. ;  made 
to  the  Senate,  February  4,  1836.  Yet  the  post- 
master general  did  not  absolutely  discountenance  the 
measure  of  the  New  York  postmaster ;  he  only 
throws  him  on  his  own  responsibility,  arguing  thus  : 
'The  post  establishment  is  for  the  conrenience,  in- 
tercourse, &ic.,  of  and  between  the  people,  not  for 
their  destruction ;  hence  it  ought  not  to  aid  in  de- 
structive measures.'  See  the  letter  of  the  postmas- 
ter general,  dated  August  4,  1835,  to  the  postmasters 
in  Charleston  and  in  New  York  ;  among  other  rec- 
ords of  the  times  in  Niles's  Weekly  Register,  Balti- 
more,   August   22,    1835.     The    majority    of    the 


CHAPTER     III  . S  ECTION     XIII.       79 

people  seem  to  have  acquiesced  In  this  decision,  and 
the  matter  has  ever  since  rested.  It  is  this,  that  I 
would  call  transcendant  construction — dangerous  in 
the  highest  degree^  yet  at  times  necessary.  Still, 
though  necessary,  it  would  be  wise  that  each  case  of 
magnitude  should  be  followed  by  an  act  of  indemnity 
as  it  is  termed  in  British  terminology  ;  for,  although 
such  an  act  may,  in  many  cases,  be  obtained  by  the 
same  power  of  popularity,  on  the  strength  of  which 
first  the  transgression  of  the  law  was  ventured,  it 
will  nevertheless  have  its   tendency   to  check. ^     In 


(])  The  British  oj)position  has  always,  and  especially  in  1807, 
demanded  that  exceptions  of  the  kind  for  which  ministers  de- 
mand afterwards  acts  of  indemnity,  must  be  rare,  must  not  touch 
on  the  fundamentals  of  the  constitution,  that  their  necessity  for 
the  common  good  must  be  proved,  and  that  this  necessity  must 
not  be  caused  by  ministers.  In  1807,  the  ministers  levied  taxes 
on  American  imports,  a  month  longer  than  allowed  by  the  Amer- 
ican Act.  The  debates  on  the  occasion  are  of  high  interest. 
See  Hansard  Pari.  Deb.  vol.  ix.  p.  99G-100].  In  181«,  ministers 
demanded  indemnity  after  the  suspension  of  the  habeas  corpus 
act,  not  only  for  themselves,  but  for  the  magistrates  which  had 
acted  by  direction  of  ministers  against  it.  Hansard,  vol.  xxxvii. 
In  182G,  oats  were  permitted  to  be  imported  against  law,  on  ac- 
count of  a  failure  of  oats  in  England.  For  the  debates  on  in- 
demnity for  this  act  against  law,  see  Hansard,  New  Series,  vol. 
xvi.  In  1838,  however,  indemnity  was  thrust  upon  a  high  offi- 
cer. Earl  Durham,  governor  general  of  the  Canadas,  had  sent 
some  insurgents,  having  acknowledged  the  fact  of  having  used 
arms  against  government,  to  the  island  of  Bermuda,  under  pen- 
alty of  death,  should  they  return.  Lord  Durham  did  it  to  save 
their  lives,  because  they  must  otherwise  have  been  executed. 
The  measure  was  declared  by  the  British  law  officers,  to  be  ille- 
gal, because  Bermuda  did  not  belong  to  the  governor-general's 
territory,  he  therefore  could  not  bind  the  exiled  to  stay  there  ; 
besides,  the  insurgents  had  not  been  legally  tried.  Whereupon 
Lord  Brougham  brought  in  the  Canada  Government  Indemnity 
bill,  which  declares  the  act  of  the   carl  illegal,  but  pronounces. 


80  HER  MENEU  TICS. 

the  Political  Ethics  I  have  spoken  of  the  unconsti- 
tutionality and  destructive  tendency,  to  all  substan- 
tial liberty,  of  a  frequent  travelling  beyond  the 
precise  limits  of  a  fundamental  law,  of  constantly 
appealing  to  the  first  and  original  sovereign  power, 
and  upon  the  principles  which  preceded  the  laws,  of 
building  constructions  to  supersede  them.  Yet  that 
which  is  dangerous  cannot,  on  this  account,  be 
always  avoided.  This  is  true  in  common  ethics  ; 
and  not  less  so  in  political.  The  only  safe  way  re- 
specting conflicts  and  collisions,  seems  to  us  boldly 
to  approach  and  investigate  them,  and  to  try  to  es- 
tablish rules  which  shall  guldens  even  in  their  mazes. 
The  more  perplexing  a  case,  the  greater  the  neces- 
sity to  trace  out  its  elementary,  component  parts  and 
principles.  Without  this  we  shall  be  led  to  pedantry 
instead  of  truth.     It  is  far  easier  indeed  to  establish 


at  the  same  time,  liis  indemnity,  and  that  of  all  officers  liaving 
aided  in  it.  The  consequence  was  the  resignation  of  Lord  Dur- 
ham. See  his  proclamation  of  Oct.  9,  1838,  in  which  lie  gives 
his  reasons  for  resigning,  and  his  opinion  of  the  indemnity  bill. 

Where  there  are  written  constitutions,  above  the  whole  legis- 
lature, the  case,  of  course,  is  different.  Nevertheless,  laws  of 
exception  were  passed  in  France  under  the  elder  Bourbons,  after 
their  restoration.  The  charter,  as  amended  in  1830,  sa}-s  in  arti- 
cle xiii.,  that  the  king  has  not  the  power  either  to  suspend  the 
laws  themselves,  or  dispense  with  their  execution. 

Inasmuch  as  a  bill  of  indemnity  involves  the  supposition  of  a 
preceding  illegal  act,  for  which  the  ministers  ask  indemnity, 
none  could  be  passed  in  America,  for  it  would  be  suspending  the 
constitution.  If  Congress  take  any  notice  of  acts,  considered 
by  many  as  illegal,  they  can  do  nothing  except  declare  by  reso- 
lution, that  the  two  houses  hold  them  to  be  lawful,  or,  in  the 
contrary  case,  impeach  the  respective  officer. 


CHAPTER     III. SECTION     XIII*       81 

a  few  general  rules  and  pedantically  to  adhere  to 
them,  even  in  cases  of  conflicts,  than  to  do  what  is 
essentially  right  and  unequivocally  true. 

4.  Extravagant  construction  is  that  which  carries 
the  effect  of  the  text  beyond  its  true  limits,  and, 
therefore,  not  any  longer  genuine  construction,  as 
the  previous  species  becomes  of  a  more  and  more 
doubtful  character  the  more  it  approaches  to  this. 
The  difference  between  the  two  is  this,  that  the  for- 
mer remains,  in  spite  of  its  transcendency,  within 
the  spirit  of  the  law,  or  document  to  be  construed  ; 
whilst  extravagant  construction  abandons  it.  That 
the  attempt,  by  mal-construction,  to  carry  designs 
into  the  sphere  of  an  instrument,  amounts  to  the 
same  with  carrying  the  effect  beyond  its  limits,  is 
clear. 

If  the  report  to  Charles  X.,  king  of  France,  made 
by  the  whole  council  of  ministers,  presided  over  by 
Prince  Polignac,  July  26,  1830,  recommended  to 
the  king  the  annihilation  of  an  essential  part  of  the 
constitution,  namely,  the  liberty  of  the  press,  guar- 
anteed by  article  8,  of  the  charter;  and  founded 
this  recommendation  on  the  power,  committed  by 
the  same  charter  to  the  king,  of  watching  over  the 
safety  of  the  state,  and  the  maintenance  of  that  very 
charter  which  the  ministers  called  a  'return  to  the 
constitution,'  it  was  considered  by  the  nation  at  large. 


82  HERMENEUTICS. 

as  an  extravagant  construction  of  the  fundamental 
law,  and  the  '  July  revolution '  ensued,  which  not 
only  overthrew  the  administration,  but  dethroned, 
likewise,  the  reigning  family.  The  history  of  Eng- 
land, especially  under  the  Stuarts,  records  many 
extravagant  constructions,  and  instances  are  not 
wanting  in  the  history  of  the  United  States. 

Thus  the  very  idea  itself,  of  the  state,  has  been 
extravagantly  construed  ;  for  instance,  when  individ- 
uals were  secretly  despatched  for,  what  was  called, 
reasons  of  the  state.  Yet  the  chief  idea,  upon 
which  the  state  is  founded,  is  the  safety  of  its  mem- 
bers. From  what  we  have  said  of  the  natural  and 
essential  character  of  power,  it  will  naturally  lean 
towards  extravagant  construction.  It  cannot  help 
doing  so,  by  its  very  nature. 


CHAPTER  IV. 


Principles  of  sound  Interpretation. —  Genuineness  of  the  Text 
Falsified  Texts  in  the  highest  as  the  lowest  Spheres. — No 
Sentence  of  Words  can  have  more  than  one  True  Sense.  — 
Double  Interpretation  is  false  Interpretation.  —  Good  Faith 
and  Common  Sense  the  leading  Stars  of  all  Genuine  Inter- 
pretation. —  Moral  Obligation  of  Legal  Counsel.  —  Lord 
Brougham's  Opinion.  —  What  Good  Faith  is  in  Interpreta- 
tion. —  Peculiar  Circumstances  which  may  make  Subterfuges 
laudable.  —  Literal  Interpretation  an  ever  ready  means  of 
Tyranny. —  Political  Shuffling.  —  Words  to  be  taken  in  their 
most  probable  sense.- — Usus  Loquendi.  —  To  what  it  may  re- 
late. —  Rules  to  ascertain  the  Meaning  of  doubtful  Words. — 
'  Contemporanea  expositio  est  fortissima  in  Lege.'  —  Instances. 
Technical  Terms  to  be  taken  in  their  technical  sense.  —  That 
which  is  inferior  cannot  defeat  that  which  is  superior.  —  The 
Text  itself  must  furnish,  if  possible,  the  means  of  interpreting 
its  own  doubtful  Words.  —  High  Considerations  on  account 
of  which  we  have  to  abandon  Interpretation.  —  Case  of  Lord 
Bentink's  Order  in  Council,  abolishing  Whipping  of  native 
Indian  Soldiers,  and  a  Sepoy  and  Drummer  being  lashed,  be- 
cause, having  become  a  Christian,  he  was  not  entitled  to  the 
Privilege  of  Natives.  —  Care  of  Sir.  Thomas  Parkyns. — 
Recapitulation  of  the  Principles  of  Interpretation. 

1.  We  shall  now  examine  the  fundamental 
principles  of  every  sort  of  interpretation,  applied  to 
whatever  branch,  to  whatever  text. 


84  H  E  R  M  E  N  E  U  T  I  C  S  . 

In  the  first  place,  interpretation  must  begin  with 
what  is  likewise  the  first  rule  of  criticism.  We 
must  convince  ourselves  that  the  text  be  genuine, 
that  is,  that  it  have  proceeded  fi^-om  the  utterer 
from  whom  it  purports  to  have  proceeded,  or  from 
whom  others  assert  it  to  have  proceeded;  or  that 
it  belongs  to  that  period,  at  which  it  is  maintained 
that  it  originated.  This  is  a  rule  of  paramount 
importance  in  all  departments,  and  not  the  least  so 
in  politics,  whether  it  refer  to  documents  issued  by 
the  highest  authority,  or  to  reports  of  speeches  or 
conversational  sayings,  yet  of  a  political  character. 
Frauds  of  the  most  surprising  character  have  been 
practised  in  altering  and  falsifying  texts,  or  palming 
entirely  spurious  ones  upon  the  public.  They  are 
daily  committed  as  to  letters  and  speeches,  with 
flagrant  boldness;  laws  have  been  interpolated, ficti- 
tious charters  and  decrees  produced,  wills  materially 
changed,  or  spurious  ones  substituted,  and  grants  of 
whole  provinces  fabricated. 

The  Isidorian  Decretals,  a  collection  of  papal 
ordinances  and  resolutions  of  the  councils  of  the 
church,  fii-st  made  by  Isidore,  archbishop  of  Seville, 
who  died  in  636,  and  afterwards  enlarged  in  the 
ninth  century,  and  many  of  which  are  of  great  im- 
portance respecting  the  papal  government,  have 
been  proved  to  contain  not  a  few  spurious  ones.    So 


CHAPTER      IV  . S  ECTION        I.  85 

at  least  all  protestants,  and  many  catholics  are  con- 
vinced. 

Luther  declared  that  first  of  all  he  must  be  con- 
vinced of  the  genuineness  of  the  bull  issued  against 
him,  in  1519,  before  he  could  take  any  step,  for  it 
was  well  known,  he  said,  with  what  brazen  boldness 
papers  had  been  produced  in  his  time,  said  to  have 
been  issued  under  papal  authority,  which,  neverthe- 
less, proved  to  be  spurious. 

The  emperor  Napoleon  proclaimed,  in  1810,  the 
concordate,  which  he  was  anxious  to  conclude  with 
Pius  VII,  then  retained  at  Fontainebleau,  as  having 
been  finally  ratified,  and,  consequently,  henceforth 
to  be  observed,  as  law  of  the  empire,  while  the 
pope  declared  it  to  be  void,  and  not  having  been 
finally  ratified. 

During  the  late  election  struggle  for  the  first  par- 
liament under  Queen  Victoria,  a  most  arduous  one 
between  the  whigs  and  tories,  entire  electioneering 
letters,  purporting  to  have  come  from  some  of  the 
highest  persons  in  rank,  went  the  rounds  of  all  the 
papers,  and  nevertheless  were  soon  after  absolutely 
disavowed  and  declared,  by  their  fictitious  authors, 
to  be,  from  beginning  to  end,  base  fabrications. 

That  reports  of  speeches,  however  honestly 
made,  require  this  kind  of  criticism  in  a  peculiarly 
high  degree,  is  a  matter  of  course. 


36  H  E  R  M  E  N  E  U  T  I  C  S  . 

!I.  No  sentence,  or  form  of  words,  can  have 
more  than  one  '  true  sense,'  and  this  only  one  we 
have  to  inquire  far. 

This  is  the  very  basis  of  all  interpretation.  In- 
terpretation without  it  has  no  meaning.  Every  man 
or  body  of  persons,  making  use  of  words,  does  so, 
in  order  to  convey  a  certain  meaning;  and  to  find 
this  precise  meaning  is  the  object  of  all  interpreta^ 
tion.  To  have  two  meanings  in  view  is  ^squivalent 
to  having  no  meaning  —  and  amounts  to  absurdity. 
Even  if  a  man  use  words,  from  kindness  or  malice, 
in  such  a  way,  that  they  may  signify  one  or  the 
other  thing,  according  to  the  view  of  him  to  whom 
they  are  addressed,  the  utterer's  meaning  is  not 
twofold  ;  his  meaning  is  simply  not  to  express  his 
opinion.  Simple  and  clear  as  this  position  is,  yet 
have  men  frequently  abandoned  it,  and  history  gives 
us  many  accounts  of  melancholy  effects  in  conse- 
quence. The  wicked  idea  of  mental  reservation  is 
chiefly  founded  upon  the  abandonment  of  this  sim- 
ple principle,  nor  has  this  simple  principle  been 
always  acknowledged  in  law.  In  cases  of  slander, 
it  was  formerly  held  that  the  words  spoken,  admitted 
a  double  interpretation,  the  asper  and  the  mitis. 
The  former  was  used  to  interpret  slanderous  words 
of  inferiors  against  superiors,  of  unprivileged  against 
privileged  persons,  for  instance,  commoners  against 


CHAPTER     IV  . S  ECTION     II.  87 

peers.  And  how  asper,  indeed,  did  the  star-cliam- 
ber  make  use  of  this  deviation  from  common  sense  ! 
And  not  only  in  cases  of  slander,  but  when  a  tailor 
had  annoyed  a  peer  by  dunning  him,  when  a  com- 
moner had  said  of  a  peer  that  he  was  no  better  man 
than  himself.  Had  the  principle  been  that  the  same 
words  used  against  some  persons  are  more  punisha- 
ble than  against  others,  tlie  case  would  have  been 
different.  This  principle  is  acted  upon  every 
where.  The  Prussian  code  gives  the  right  of  dis- 
inheriting a  child  for  having  used  bad  names  against 
the  parent.  Disrespectful  words  against  a  judge  on 
the  bench  are  far  differently  punished  from  what 
they  would  be  if  directed  against  him  in  common 
company.  But  the  principle  was  actually  that  of 
double  interpretation  ;  in  short,  interpretation  was 
mistaken  for  the  act  of  bringing  a  sense  into  the 
words,  instead  of  acknowledging  as  its  sole  legiti- 
mate office,  that  of  bringing  the  sense  out  of  them. 
It  is  this  mistake  alone  which  has  actually  produced 
with  many  persons  so  strong  an  aversion  to  the  very 
word  of  interpretation. 

The  fictitious  law  case,  composed  by  Pope  and 
Fortescue,  as  having  ensued  in  consequence  of  Sir 
John  Swale  having  bequeathed  to  his  friend,  Mr. 
Straggling,  "  all  my  black  and  white  horses,"  when 
there  were  found  six  black  horses,  six  white  ones, 


88  HERMENEUTICS. 

and  six  that  were  black  and  white,  or  pied  horses, 
is  certainly  entertaining.  Yet  the  question  ought 
never  to  have  arisen  "  whether  the  pied  horses  were 
included  in  the  legacy,"  as  was  assumed  by  those 
gentlemen.  As  there  can  be  but  one  meaning  at- 
tached to  any  sentence,  the  testator  could  not  have 
meant  by  his  words  all  black  and  all  white  horses, 
and,  at  the  same  time,  all  black  and  white  horses. 
The  only  difficulty  arising  from  this  will  could  be 
this  ;  whether  the  testator  meant  to  bequeath  to  i\Ir. 
Straggling  all  black  and  all  white  horses,  or  all  black 
and  white  horses. 

Nothing  is  more  frequent,  in  tyrannical  govern- 
ments, than  that  the  same  law  is  made,  according  to 
the  convenience  of  each  single  case,  to  mean  all 
black  and  all  wdiite  horses,  and,  at  the  same  time,  all 
black  and  white  horses.  Laws  are  made  political 
see  saws  ;  for  the  indelible  moral  nature  of  men 
forces  even  a  tyrant,  to  prefer,  as  long  as  possible,, 
the  protection  of  the  law  ;  nay,  rather  the  mere  pre- 
tence of  protection  by  the  letter,  the  very  shadow 
of  the  law,  to  the  bare  and  bold  confession  of  power 
alone,  as  the  sole  basis  of  his  demands. 

III.  In  no  case  of  human  life,  in  which  we  are 
called  upon  to  act,  to  apply  rides  or  to  understand 
what  others   say,   can   we   dispense   with    common 


CHAPTER      IV  . S  E  C  T  I  0  N       III.  89 

sense  and  good  faith,^  but  they  are  peculiarly  requi- 
site in  interpretation,  because  its  object  is  to  discover 
something  that  is  doubtful,  obscure,  veiled ;  which, 
therefore,  may  admit  of  different  explanations.  If 
without  common  sense,  we  may  make  even  of  strict 
syllogism,  an  instrument,  apparently,  to  prove  ab- 
surdities, how  much  more  are  those  two  ingredients 
of  all  honesty  necessary  in  interpretation.  Common 
sense  and  good  faith  are  the  leading  stars  of  all  gen- 
uine interpretation.  Be  it  repeated,  our  object  is 
not  to  bend,  twist,  or  shape  the  text,  until  at  last 
we  may  succeed  in  forcing  it  into  the  mould  of  pre- 
conceived ideas,  to  extend  or  cut  short  in  the  man- 
ner of  a  Procrustes,  but  simply  and  solely  to  fix 
upon  the  true  sense,  whatever  that  may  be. 

It  has  been  mentioned  already,  that  the  species  oi 
interpretation,  which  was  called  predestined,  is,  un- 
der certain  circumstances,  and  with  certain  limits, 
allowed  to  be  used  by  legal  counsel.  But  they 
must  take  heed,  that  they  do  not  injure,  in  doing  so, 
the  peace  and  safety  of  others.  It  would  be  abso- 
lutely immoral,  if  a  counsel,  by  artful  interpreta- 
tion, were  to  throw  plausible  suspicion  upon  an  inno- 
cent individual ;  that,  however,  which  is  absolutely 
immoral,  cannot,  under  any  circumstances,  be   ad--. 

(1)  See  Pol.  Ethics,  vol.  i.  book  i.  ch.  0. 
8* 


90  H  E  R  M  E  N  E  U  T  I  C  S  . 

missible.  Knowingly  to  rob  a  person  of  lawful 
property  by  artful  interpretation  in  favor  of  the 
client,  will  be  declared  by  the  conscience  of  every 
lawyer  to  be  immoral.  Yet  to  fix  the  precise  limit 
between  the  demands  of  public  justice  in  countries, 
in  which  it  is  believed  that  civil  liberty  depends  in 
a  great  measure  upon  the  fact  that  the  court  be  en- 
tirely neutral,  so  long  as  the  case  is  debating,  and 
where  it  does  not,  therefore,  direct  the  eliciting  of 
the  whole  truth,  even  from  the  prisoner,  and  the 
grave  duty  of  the  counsel,  to  do  every  thing  in  fa- 
vor of  the  client,  on  the  one  hand,  and  on  the  other 
hand,  the  stern  demand  that  justice  be  done  in  re- 
ality, and  not  in  appearance ;  that  the  innocent  be 
not  injured ;  that  morality  be  not  compromised  ;  the 
fact  that  courts  are  established  by  society  for  society, 
for  the  sake  of  justice,  not  to  be  arenas  for  the  dia- 
lectic skill  of  disputants  —  to  fix  the  precise  limit 
between  these  two  grave  demands  of  liberty  and 
justice,  is  one  of  the  most  difficult  subjects  in  the 
whole  range  of  political  ethics  —  a  subject  worthy 
of  the  highest  and  most  fearless  intellect,  the  purest 
honesty  and  humanity,  and  profoundest  as  well  as 
most  extensive  learning.  It  is  a  subject,  the  philo- 
sophic treatment  of  which  is  more  urgently  asked 
for,  the  more  civil  liberty  is  extended  ;  and  the  more 
undefined  notions,  in  regard  to  forensic  ethics,  seem 


CHAPTER      IV. SECTION      III.  91 

to  be  afloat ;  sometimes,  actually,  as  if  of  all  ration- 
al beings  on  the  face  of  the  globe,  the  advocate  alone 
were  absolved  from  all  morality  and  ethic  obligation. 
Though  Lord  Brougham,  when  he  defended  Queen 
Caroline,  may  have  been  urged  to  say  far  more  in 
the  warmth  of  pleading,  than  he  would  calmly 
maintain,  it  is,  nevertheless,  startling  injhe  highest 
decree,  if  such  a  man  dares  to  assert  that  '  an  ad- 
vocate,  in  the  discharge  of  his  duty,  knows  but  one 
person  in  all  the  world,  and  that  person  is  his  client. 
To  save  that  client  by  all  means  and  expedients, 
and  at  all  hazards  and  costs  to  other  persons,  and 
among  them,  to  himself,  is  his  first  and  only  duty  ; 
and  in  performing  this  duty,  he  must  not  regard  the 
alarm,  the  torments,  the  destruction,  which  he  may 
bring  upon  others.  Separating  the  duty  of  a  pa- 
triot from  that  of  an  advocate,  he  must  go  on,  reck- 
less of  consequences,  though  it  should  be  his  un- 
happy fate  to  involve  his  country  in  confusion."^ 

If  there  be  a  person  who  does  not  see  at  once, 
how  untenable  this  remark   is,  let  him  imagine,  the 

(1)  Provided  his  speeches  on  that  occasion  are  correctly  re- 
ported in  the  Trial  of  the  Queen  of  England,  before  the  Peers 
of  Great  Britain,  2  vols.  London,  1820.  I  do  not  know  of  a  dis- 
avowal on  the  part  of  Lord  Brougham  ;  but  if  there  exists  one, 
should  rejoice  at  its  greater  publicity.  I  repeat,  that  this  remark 
may  have  been  elicited  by  the  cry  of  the  tories,  that  the  whigs 
used  that  occasion  only  to  disturb  the  peace  of  England,  a  charge 
which  came  Indeed  with  bad  grace  from  those  who  had  institu- 
ted the  trial  to  satisfy  the  personal  rancor  of  sncli  a  monarch  as 
George  IV.,  against  their  own  conviction. 


92  HERMENEUTICS. 

then  Mr.  Brougham  had  said,  '  it  is  the  duty  of  an 
advocate  to  save  his  chent  at  all  hazards,  even 
should  he  bring  shame  upon  his  own  mother.'  And 
why  is  this  more  frightful  than  what  Mr.  Brougham 
actually  asserted  ?  In  short,  he  forgot,  as  we  are  all 
so  apt  to  do,  the  object,  and  remembered  the  means 
only.  Justice  is  the  object  of  trials,  and,  for  the 
better  obtaining  it,  it  is  thought  that  counsel  on  both 
sides  should  state  all  that  can  be  said  ;  but  the  ob- 
ject is  not  to  save  every  person.  If  so,  we  should 
act  very  strangely  to  try  the  person  at  all.  But 
although  different  duties  may  devolve  upon  different 
individuals,  and  continually  do  so,  still  the  final  ob- 
ject and  ultimate  duty  remains  the  same.  The 
lawyer  does  not  cease  to  be  a  citizen,  not  cease  to 
be  a  man,  and  all  the  fundamental  obligations  are 
the  same  for  him  as  for  all  others.  I  doubt  whether 
ever  a  bolder  assertion  has  been  made  in  the  most 
fanatical  periods  respecting  the  obligations  of  prop- 
agating true  religion,  and  extirpating  heretics.  The 
simple  question,  why  ?  puts  the  whole  assertion  to 
naught.  As  to  separating  the  duty  of  a  patriot  from 
that  of  advocate,  it  amounts  to  words,  and  words 
only.  Moral  obligations  are  eternal  and  immutable, 
though  the  acts  which  the  same  obligations  require, 
may  differ  in  different  situations.  If  it  is  a  duty  to 
be  patriotic  at  all,  we  can  no  where  be  absolved 


tm 


CHAPTER     iV. SECTION     IV.  93 

from  it,  although  patriotism  may  demand  different 
acts,  in  time  of  war,  from  an  only  son,  who  supports 
aged  persons  and  minor  sisters,  and  from  a  son  of  a 
hale  and  healthy  father,  or  a  man  who  stands  single 
in  life. 

IV.  Good  faith  in  interpretation  means  that  we 
conscientiously  desire  to  arrive  at  truth,  that  we 
honestly  use  all  means  to  do  so,  and  that  we  strictly 
adhere  to  it,  when  known  to  us — it  means  the 
shunning  of  subterfuges,  quibbles  and  political  shuf- 
fling—  it  means  that  we  take  the  words  fairly  as 
they  were  meant. 

Pope  Sixtus  IV.  was  bent  on  breaking  down  the 
Roman  house  of  Colonna.  He  besieged  the  for- 
tress of  Marino,  held  by  the  Colonnas.  One  mem- 
ber of  this  family,  the  prothonotary  Colonna,  was  a 
prisoner  in  the  hands  of  the  pope,  who  offered  to 
give  up  the  captive,  if  his  family  would  surrender 
Marino.  The  offer  was  accepted,  and  the  gates  of 
the  fortress  were  opened.  On  the  other  hand,  the 
pope  gave  up  the  prothonotary,  but  —  after  having 
slain  him.  Alegretto  Allegretti,  Diari  Sanesi,  p.  817, 
gives  the  words  of  despair  and  the  curse  against  the 
faith  of  the  pope  and  all  that  thus  shall  keep  their 
word,  into  which  the  mother  of  Colonna  broke  out, 
when  she  lifted  up  the  severed  head.  The  instance 
given  by  Vattel  (B.  II.  ch.  XVII.  273)  is  well  known. 


94  HERMENEUTICS. 

•'  Mahomed,  Emperor  of  the  Turks,  at  the  taking  of 
Negropont,  having  promised  a  man  to  spare  his 
head,  caused  him  to  be  cut  in  two  through  the  mid' 
die  of  the  body.' 

Cardinal  Bentivoglio,  papal  nuncio  at  Brussels, 
about  the  year  1614,  considered  the  possession  of 
the  fortress  of  Wesel  necessary,  because  it  appeared 
to  him,  the  '  Rhenish  Geneva.'  Spinola  besieged 
it,  and  it  had  to  surrender.  The  capitulation  stipu- 
lated that  one  thousand  Spaniards  should  be  garri- 
soned in  the  place ;  he  put  three  thousand  into  it. 
The  citizens  complained  of  the  infringement  of  the 
capitulation,  when  Spinola  answered,  that  the  instru- 
ment did  not  express,  that  not  more  than  a  thousand 
soldiers  should  form  the  garrison.^  Spinola  was 
wrong,  because  his  interpretation  was  not  faithful, 
and  he  erred,  besides,  against  another  principle  of 
interpretation,  which  will  be  stated  farther  below, 

V.  The  character,  however,  of  the  transaction, 
to  which  the  words,  to  be  interpreted,  relate,  may 
be  so  peculiar  that  we  cannot  withhold  our  approba- 
tion from,  or  disown  to  be  fair,  what  in  other  cases 
would  be  justly  termed  subterfuge. 

German  history  gives  a  remarkable  instance  of 
this  kind  in  the  women  of  Weinsberg.     After  kins 


(1)  Gaf,  Hist,  of  the  Synod  of  Dort;  Ludolf.  Theatre  I,  491. 
both  in  German. 


CHAPTER     I  V. S  E  C  T  I  O  N       V  .  95 

Conrad  had  defeated,  in  1140,  Duke  Guelf  VI.,  in 
the  battle  of  Weinsberg,  this  city  was  besieged,  and 
soon  reduced  to  the  necessity  of  surrendering.  The 
men  were  doomed  to  die.  Upon  this,  the  women 
implored  Conrad  to  allow  them,  at  least,  to  take 
away  so  much  of  their  treasures  as  each  could  carry 
on  her  back.  The  request  was  granted  ;  but  when 
the  appointed  hour  of  their  departure  arriv^ed,  a  long 
procession  of  women  appeared,  each  carrying  her 
husband.  Duke  Frederic,  the  king's  brother,  was 
enraged,  but  Conrad  said  :  '  a  royal  word  must  not 
be  twisted  ; '  and  the  faithful  wives  were  now  allow- 
ed to  carry  away  their  other  treasures  likewise. 
Raumer's  History  of  the  Hohenstaufen,  Vol.  I.  p. 
397.  Some  hypercritics  have  doubted  the  fact,  but, 
according  to  this  distinguished  historian,  unreasona- 
bly so. 

Here,  the  fact  that  the  proposition  came  from  the 
women,  and  that  they  made  it  purposely,  in  a  man- 
ner that  Conrad  should  be  deceived,  was  decidedly 
against  them,  according  to  the  principles  of  herme- 
neutics.  There  would  not  even  be  claimed  for 
them  the  rule  of  construction,  which  gives  the  bene- 
fit of  doubt  to  the  weak,  or  makes  us  incline  in 
doubtful  cases  toward  mercy  ;  because  the  truth 
was,  that  according  to  faithful  interpretation  there 
was  no  doubt  whatever,  as  to  the  meaning  in  which 


96  H  E  R  M  E  N  E  U  T  I  C  S  . 

the  women  had  been  desh'ous  that  Conrad  should 
take  the  word  treasure,  in  which  he  actually  had 
taken  it.  Yet  what  generous  soldier  would  not 
have  granted  them  the  full  benefit  of  their  praise- 
worthy subterfuge,  and  noble  deception? 

Lately  a  flute-player  advertised  in  an  English 
town,  that,  between  the  acts,  he  would  exhibit  the 
extraordinary  feat  of  holding  in  his  left  hand  a  glass 
of  wine,  which  he  would  drink,  though  the  six 
strongest  men  of  the  place  should  hold  his  left  arm 
and  try  to  prevent  him  from  bringing  the  glass  with 
It  to  his  lips.  Six  stout  men  accordingly  grasped 
his  arm  at  the  night  of  performance,  when  he  quietly 
advanced  his  right  hand,  took  the  glass,  and  quaffed 
the  wine.  Now,  there  are  many  countries  in  which 
'  tricking  the  public  '  is  punishable.  Some  judicial 
proceeding  might  have  been  the  consequence  ;  but 
though  the  flute-player  evidently  resorted  to  a  quib- 
ble, he  must  have  been  acquitted;  because  his  ad- 
vertisement showed  to  every  intelligent  man,  that 
his  words  could  not  be  meant  to  be  taken  in  a  plain 
sense.  There  is  no  reason  why  the  man  should  not 
have  the  benefit  of  his  wit,  if  the  public  choose  to 
be  gulled.  They  took  the  true  ground  in  the  above 
case,  and  applauded  the  ingenious  deceiver.^ 


(1)  We  have  seen  already,  cliap.  II.  iv.  how  necessary  com- 
mon sense  is,  to  make  the  commonest  intercourse  among  men 


CHAPTEK     IV  . S  ECTION     VI.  97 

VI.  That  artifice,  to  which  revengeful  tyranny 
so  often  resorts  to  obtain  its  objects,  without  incur- 
ring the  direct  charge  of  guilt,  or  to  which  a  trou- 
bled conscience  has  recourse,  to  appease  its  remorse, 
when  we  are  anxious  to  throw  the  guilt  from  our 
shoulders,  in  cases  of  divided  responsibility,  is  gene- 
rally, in  its  essence,  founded  upon  literal  or  unfaith- 
ful interpretation. 

After  the  infamous  Jeffreys  had  done  all  in  his 
power,  during  the  trial,  to  ruin  Algernon  Sidney,  he 


a  matter  of  possibility.  Another  instance  is  strikingly  exhibited 
in  the  clown  of  the  low  comedy.  The  greater  part  of  the  jokes, 
by  which  these  personages  make  tlie  hearers  laugh,  rest  on  lite- 
ral interpretation  and  the  contrast  between  the  sense  which  the 
spectator  attaches  to  a  sentence,  and  that  in  which  the  merry 
Andrew  takes  it.  Almost  the  entire  story  of  the  far-famed  Eu- 
lenspiegel  is  founded  upon  literal  interpretation.  Puns  are  gen- 
erally nothing  else.  Nor  does  this  contrast  and  surprise  caused 
by  it,  belong  to  the  lower  spiierc  only  ;  the  finest  wit,  the  sweet- 
est passages,  as  well  as  the  most  majestic,  of  a  Siiakspcare,  often 
turn  upon  it.  That  touching  anecdote  of  Pope  Gregor}'  the 
Great,  meeting  with  enslaved  Angles  in  the  market  of  Rome, 
and  the  conversion  of  the  British  to  Christianity,  which  was 
caused  by  it,  is  founded  upon  literal  interpretation.  Palgrave, 
in  his  History  of  the  Anglo-Saxons,  relates  it  thus.  Pope  Greg- 
ory chanced  to  see  some  beautiful  Saxon  boys  offered  as  slaves, 
and  he  asked  :  '  To  what  nation  do  these  poor  boys  belong  ? ' 
The  dealer  answered,  '  They  are  Angles,  Father.'  '  Well  may 
they  be  so  called,  for  they  are  as  comely  as  angels ;  and  would 
that,  like  angels,  they  might  become  cherubim  in  heaven  !  But 
from  which  of  the  many  provinces  of  Britain  do  tiiey  come  ?  ' 
'  From  Deira,  Father.'  '  Indeed,'  continued  Gregory,  speaking 
in  Latin, '  De  ira  Dei  liberandi  sunt.'  And  when,  on  asking 
the  name  of  their  king,  he  was  told  it  was  Ella,  or  Alia,  he  add- 
ed, that  *  AUelujah  —  praise  ye  the  Lord  —  ought  to  be  sung  ia 
his  dominions.' 

But  the  object  of  law  and  politics  is  neither  to  amuse  or  touch, 
and  we  must  discard,  therefore,  literal  interpretation. 

9 


98  HERMENEUTICB. 

declared,  when  pronouncing  the  sentence,  that  he 
had  nothing  to  do  with  the  matter,  except  to  pro- 
nounce the  law  ;^  the  jury  had  decided  that  Sidney 
was  guilty  of  treason  ;  and  no  doubt,  had  he  him- 
self been  brought  to  trial  when  James  was  expelled, 
would  have  used  this  as  an  argument  for  his  defence. 

The  Spanish  inquisition  never  sentenced  a  man  to 
die,  for  the  church  seeks  not  the  death  of  men  ;  it 
only  declared  the  culprits  to  be  heretics,  and  hand- 
ed them  over  to  the-  secular  authority.  If  thought 
necessary,  the  heretic  was  burnt,  the  officers  of  the 
inquisition  being  present.  Yet,  as  late  as  about 
1822,  it  was  stoutly  maintained  that  the  inquisition 
had  nothing  whatsoever  to  do  with  the  death  of  any 
heretic.^ 

In  these  cases  of  political  shuffling,  which  extends 
into  all  branches  of  politics,  the  deed  is  represented 
as  floating,  as  it  were,  between  the  actors  ;  each 
one  having  performed  but  a  part,  is  free  of  respon- 
sibility ;  as  if  two  men  might  commit  an  act  of  for- 

(J)  See  Sidney's  Trial,  in  the  Memoirs  of  his  Life,  in  his  Dis- 
courses on  Government,  &c.  4to  ed. 

(2)  The  title  of  the  book  I  have  forgotten,  but  its  two  argu- 
ments were,  first,  as  I  stated,  that  of  political  shuffling,  and  sec- 
ondly, that  the  heretics  in  Spain  were  nearly  all  actual  Ireators, 
politically  speaiiing — alluding  to  the  poor  Moriscos.  It  is  the 
view  which  Mr.  Capefigue,  in  his  '  Richelieu,  Mazarin,  la 
Fronde  et  Louis  XIV,'  Paris,  IS35,  8  vols,  seems  to  take.  The 
only  modern  work  of  extent  on  the  Spanish  Inquisition,  which 
deserves  to  be  consulted  as  authority,  is  Lloiente'a  History  of 
the  Inquisition. 


CHAPTP.  R      IV  . -S  P.  CTION      VII.  99 

gery  between  them,  but  each  one  remain  not  guilty 
of  forgery,  by  doing  an  act,  in  itself  and  singly, 
lawful. 

The  memoirs  of  any  man,  who,  high  in  power, 
is  desirous  of  justifying  reproachful  acts,  will  always 
be  found  replete  with  this  shuffling  on  the  ground  of 
literal  interpretation,  for  instance,  the  late  Memoirs 
of  Godoy,  the  Prince  of  the  Peace,  who  was  so 
long  the  actual  ruler  of  Spain,  in  the  name  of 
Charles  IV. 

VII.  Faithful  interpretation  implies  that  words, 
or  assemblages  of  words,  be  taken  in  that  sense, 
which  we  honestly  believe  that  their  utterer  attach- 
ed to  them.  We  have  to  take  words,  then,  in  their 
most  probable  sense,  not  in  their  original,  etymologi- 
cal, or  classical,  if  the  text  be  such  that  we  cannot 
fairly  suppose  the  author  used  the  words  with  skill, 
knowledge,  and  accurate  care  and  selection.  Gro- 
tius  says :  si  nulla  sit  conjectura  qua  ducat  alio, 
verba  intelligenda  sunt  ex  proprietate,  non  gram- 
matica  qu<B  est  ex  origine,  sed  populari  ex  usu. 
'  Quern  penes  arbitrium  est  et  jus  et  norma  loquen^ 
di.'     De  Jure  Bel.  et  Pac.  Lib.  II.  c.  XVI.  11.^ 

(1)  It  is  different,  if  our  object  is  scientifically  to  settle  which 
signification  we  ought  to  give  to  a  word,  if  we  write  ourselves, 
not  that  which  has  been  given  by  others,  in  common  wrjting,  or 
if  we  have  to  find  out  the  signification  a  word  had  in  former 
periods.     In  these  cases,  its  etymology  is  frequently  of  much 


100  H  F.  RMF.  NE  Tl  T  I  r  S. 

VIII.  According  to  the  character  of  the  text 
before  us,  we  are  obliged  to  take  words,  either  in 
their  common  adaptation  in  daily  life,  or  in  the  pe- 
culiar signification  'which  they  have  in  certain  arts, 
sciences,  sects,  provinces,  &ic.,  in  short,  we  have  to 
take  words  according  to  what  is  termed  usiis  loquendi. 
Horse,  in  common  language,  means  a  common  ani- 
mal ;  in  a  marine  insurance  case,  it  might  mean  this 
animal,  or  a  certain  part  of  the  vessel ;  the  connex- 
ion in  which  the  word  stands  with  others  must  give 
the  decision.  In  a  fire  insurance  case,  the  sam« 
word  might  have  an  architectural  meaning.  In  a 
criminal  case,  it  might  mean  a  cloth  horse  used  in 
laundries  ;  and  in  a  military  order  it  might  stand  for 
the  word  cavalrist.  If  an  officer  had  received  an 
order  to  send  200  horse,  and  1  e  were  arraigned  for 
disobedience,  it  would  be  ai;  insufficient  excuse  were 
he  to  plead,  that,  the  order  being  to  send  200  horse, 

importance  ;  for  if  it  does  not  unfoU  to  us  the  entire  and  present 
signification  of  a  word,  the  origin  and  history  of  a  word  will, 
nevertheless,  shed  considerable  light  upon  its  signification  in 
many  instances.  Etj'mology  becomes  especially  valuable  in 
settling  the  precise  meaning  of  synonymes.  Altogether,  etymol- 
ogy is  one  of  tiie  means  of  arriving  at  the  signification  of  a  word, 
and  must  be  used  as  all  the  others,  with  common  sense  and  in 
good  faith.  Archbishop  Whately  says  :  '  It  is  worth  observing, 
as  a  striking  instance  of  the  little  reliance  to  be  placed  on  ety- 
mology as  a  guide  to  the  meaning  of  a  word  (he  ought  to  have 
said,  absolute  meaning;  for  etymology  is  in  cases,  no  mean 
guide  to  the  comparative  meaning  of  a  word),  that  Hypostasis, 
Substantia  and  Understanding,  so  widely  different  in  their  sense, 
correspond  in  their  etymology.'  Whately's  Logic,  Appendix 
ad  verbum  Person. 


CHAPTER      IV. SECTION       IX.         101 

he  did  not  know  how  to  send  them,  since  the  men 
were  not  ordered  at  the  same  time.  The  word 
horse  is  frequently  used  in  military  language  for  a 
man  with  his  horse.  Thus  the  word  soul  stands  fre- 
quently in  statistical  writings  for  individuals  of  the 
human  species. 

The  general  character  of  the  text,  whether  it  has 
emanated  from  a  high  or  low  source,  and  was  drawn 
up  with  care  or  in  haste,  with  a  knowledge  of  the 
technical  terms  or  not,  the  peculiar  character  of  the 
author,  and  the  especial  connexion  in  which  we  find 
a  doubtful  word,  must  direct  us  in  fixing  upon  a 
proper  meaning. 

IX.  The  usus  loquendi  may  relate  to  a  language 
in  general,  for  instance,  yemme  sage  in  French,  which 
never  means  a  wise  woman  but  always  a  midwife — 
or  res  in  Latin,  which  stands  often  for  deeds — or 
deed  in  English,  which  stands  often  for  a  certain 
species  of  document.  Or  the  usus  loquendi  may 
relate  to  a  particular  period,  as  imjperator,  which,  at 
the  time  of  the  Roman  republic,  meant  some- 
thing different  from  what  it  signified  during  the  em- 
pire ;  or  the  Greek  nlang  which  required  a  different 
meaning  with  the  Christian  writers.  The  word 
Obtaining  means  now  frequently  something  entirely 
different  from  what  it  formerly  did.  Or  it  may  re- 
9* 


102  HERMENEUTICS. 

late  to  an  individual  author,  thus  Dion.  Halicarnassus 
wrote  on  the  idioms  of  Thucydides  ;  or  to  a  certain 
art  or  science,  as  we  have  seen  above  ;  or  to  a  cer- 
tain society,  sect,  he;  or  to  a  peculiar  class  in  soci- 
ety, in  a  nation,  for  instance,  the  illiterate ;  or, 
finally,  to  a  part  of  a  country  (^provincialisms,) 

X.  The  chief  rules  in  ascertaining  the  meaning 
of  doubtful  words,  besides  the  general  one  just  given, 
that  we  are  to  take  the  words  in  that  meaning  which 
we  may  faithfully  believe  their  utterer  attached  to 
them,  (which  word  faithfully,  however,  does  not 
imply  our  being  carried  away  by  personal  feelings, 
violent  dislikes,  or  conceited  self-considerations,) 
are  : 

To  try  first  to  ascertain  the  meaning  from  other 
passages  of  the  same  text,  in  which  the  ambiguous 
word  occurs,  so  used  that  it  leaves  no  doubt — by 
parallels. 

To  ascertain  it  from  other  sources  which  we  con- 
sider fully  competent :  thus,  with  regard  to  dead 
languages,  from  contemporary  writers  in  the  same 
language,  or  other  contemporaries,  who  have  chanced 
to  explain  the  doubtful  word,  as  Cicero  explains 
several  Greek  words  :  with  respect  to  living  langua- 
ges, from  works  or  persons  of  the  same  nation,  com- 
munity, profession,  art,  Stc,  to  which  the  doubtful 


CHAPTER     IV. SECTION    X.  103 

word  may  relate,  after  these  persons  have  established 
their  character  for  competency  and  truth  ;  from  pre- 
vious expounders,  of  weighty  authority,  who  are 
known  to  have  paid  much  attention  to  the  subject, 
and  have  done  it  with  patience,  learning,  shrewdness^ 
and  conscientiousness ;  and  from  scholia,  glosses, 
versions,  and  commentators. 

To  this  rule  refers  the  old  maxim,  acknowledged, 
among  others  by  Lord  Coke  :  '  Contemporanea  ex- 
positio  est  fortissima  in  lege' — that  is,  as  in  all  other 
cases,  cum  granu  salis,  as  will  appear  more  clearly 
from  the  sequel.  We  have  in  this  particular,  to 
guard  ourselves  against  an  inordinate  veneration  of 
old  authors,  merely  because  they  are  old,  or  against 
a  too  implicit  reliance  upon  old  authors,  simply  be- 
cause they  have  been  relied  upon  so  long.  Science 
advances,  and  it  would  be  a  matter  of  great  regret, 
if  successive  centuries  were  unable  to  supersede  by 
their  labors  some  works  of  previous  periods,  though 
they  have  justly  enjoyed,  and  for  a  long  time,  the 
reputation  of  authority.  See  especially  the  chap- 
ters on  Precedents  and  Authorities. 

We  must  be  guided  by  the  degree  of  care,  which 
common  sense  will  oblige  us  to  believe  to  have  been 
bestowed  upon  the  selection  of  words  and  their  ar- 
rangement. It  would  be  in  accordance  with  genuine 
interpretation,  to  take  the  same  word  in  a  wider  or 


104  HERMENEUTICS. 

more  restricted  sense,  or  in  an  entirely  different  one, 
if  we  meet  with  it  in  an  international  treaty,  from 
what  we  would  do,  had  we  the  will  of  a  private  indi- 
vidual before  us. 

XI.  The  reader  will  find  in  this  section,  some 
instances,  elucidating  the  preceding  remarks. 

In  former  ages,  the  students  of  the  most  frequent- 
ed European  universities  were  divided  into  various 
societies,  called  nations,  which  had  their  peculiar 
privileges,  as  there  are  to  this  day  four  '  nations  '  in 
the  university  of  Glasgow.  Property  was  not  un- 
frequently  bequeathed  to  them ;  the  word  nation, 
therefore,  in  a  will  containing  such  bequest,  was  to 
be  taken  in  an  entirely  different  sense  from  what 
would  be  given  to  it,  in  a  national  treaty.  Again, 
the  various  tribes  of  the  North  American  Indians 
are  frequently  called  nations,  and,  secondly,  the 
country  they  inhabit.  In  this  peculiar  signification, 
the  word  Nation  is  often  used  in  public  documents 
of  the  United  States,  relating  to  transactions  with  the 
Indians,  for  instance  to  their  ceding  of  lands. 

In  the  commercial  treaties  of  the  United  States 
with  other  powers,  the  expression  American  goods 
is  used.  To  give  to  this  term  the  meaning  of  goods 
coming  from  any  part  of  the  continent  of  America, 
or  its  adjacent  islands,  would  not  be  genuine  inter- 
pretation. 


CHAPTER     IV.  SECTION     XI.  ]05 

The  Tariff  of  the  United  States  imposes  a  differ- 
ent duly  upon  manufactured  articles  of  iron  and  on 
bar  iron.  A  merchant  in  New  York  imported,  in 
1832,  rolled  iron,  which  the  collector  declared  to  be 
bar  iron,  liable  to  the  heavier  duty.  The  merchant 
claimed  the  benefit  of  the  smaller  duty,  the  imported 
article  being,  according  to  his  opinion,  manufactured 
iron.  The  question  came  before  the  proper  court, 
in  September  of  the  same  year,  and  witnesses,  ac- 
quainted with  the  terms  of  the  iron  trade,  were  called 
to  state  whether  the  term  manufactured  iron  applied 
to  rolled  iron  or  not.  So,  in  another  case,  it  was 
necessary  to  ascertain  from  credible  persons,  con- 
versant with  the  subject,  whether  the  term  old  iron 
was  applicable  to  certain  imported  iron  or  not.  In- 
teresting, with  regard  to  this  subject,  is  likewise  a 
case  which  attracted  much  attention,  where  it  was 
decided  by  Mr.  Justice  Story,  in  the  Circuit  Court 
of  the  United  States,  that  '  loaf  sugar,'  after  being 
crushed,  in  which  state  it  was  imported  into  the 
United  States,  was  not  '  loaf  sugar '  within  the  Tariff 
Act  of  the  United  States  of  1816.  See  United 
States  V.  Breed,  1  Sumner  R.  159. 

The  constitution  of  Massachusetts  provides  that 
votes  shall  be  given  in  writing.  The  proper  officers, 
some  years  ago,  had  refused  a  printed  vote,  usually 
called  a  ticket.     An  action  was  consequently  brought 


106  UERMENEUTICS. 

before  the  supreme  court  of  that  state,  andjt  was 
decided  that  writing  in  this  case  included  printing. 
See  Henshaw  v.  Foster,  Pick.  R.  318.  This  can 
only  be  founded  upon  the  principle  that  the  ustts 
luquendi,  with  regard  to  the  word  writing,  has 
changed.  There  are,  however,  many  who  consider 
this  interpretation  decidedly  what  we  have  called  an 
extravagant  interpretation. 

A  will  made  in  the  state  of  New  York,  and  pro- 
viding means  for  the  foundation  of  a  common  school, 
must  be  so  interpreted  that  it  means  a  school  accord- 
ing to  the  standard  of  those,  which  are  called 
common  schools  in  that  state,  and  not  in  Connecti- 
cut, Massachusetts,  France,  Prussia,  or  any  other 
country. 

-  If  the  late  Mr.  Girard,  of  Philadelphia,  directs  by 
his  will,  that  at  least  two  millions  of  dollars  shall  be 
used  for  the  foundation  of  an  asylum  for  '  poor  male 
white  orphans,'  the  word  poor  is  to  be  interpreted 
according  to  the  views  of  the  community  of  the 
time  in  which  he  lived ;  while  the  word  white  every 
one  knows  is  used  to  indicate  the  descendants  of  the 
Caucassian  race,  whose  blood  has  remained  unmixed 
with  that  of  Negroes,  Indians,  or  that  of  any  other 
'colored'  race.  The  provision  cannot  be  invalida- 
ted by  the  objection  that  no  really  white  people 
exist.     The  word  orphan  must  be  taken  in  the  sense 


CHAPTER     IV. SECTION     XI.  107 

in  which  it  is  understood  by  nearly  all  nations, 
namely,  meaning  a  fatherless  child. 

In  a  similar  way  have  others  left  money  for  the 
foundation  of  schools  for  '  colored  '  people,  meaning 
thereby  negroes  and  mulattos.  In  some  parts  of  the 
world,  the  term  would  signify  people  of  mixed  blood 
only,  for  instance,  in  the  West  Indies ;  while  a  court 
in  New  England  would,  perhaps,  be  obliged  to  in- 
clude negroes,  since  this  word,  considered  harsh,  has 
given  way,  in  a  degree,  to  that  of  colored  people, 
in  that  part  of  the  Union.  Again,  if  a  testator 
should  stipulate  that  a  certain  sum  should  be  paid 
for  the  best  chemical  treatise  on  colorless  blossoms, 
it  would  be  sufficient  to  prove  in  court  that  colorless 
means  green. 

In  September,  1837,  a  case  of  considerable  im- 
portance was  lately  tried  in  England,  in  which  the 
question  was,  whether  a  steam  ship  comes  within  the 
meaning  of  the  act  which  regulates  the  London 
pilotage — an  act  passed  when  there  were  no  steara 
vessels,  claiming  parliamentary  attention.^ 

(1)  My  legal  friends  I  trust  will  pardon  mo,  if  I  quote  here 
from  the  papers  of  the  time,  in  lieu  of  better  reference  The 
case  came  before  Mr.  Ballantine  in  the  sliape  of  an  information 
against  Capt.  J.  Anderson,  master  of  the  North  Star  steam-ship, 
who  was  charged  with  liavinir,on  the  I'lth  of  May  last,  acted  as 
a  pilot  on  board,  after  J.  H.  Bennett,  a  pilot  duly  licensed  by  the 
Trinity-house,  had  offered  to  take  charge  of  llie  steamer  ;  where- 
by the  defendant  had  forfeited  the  sum  of  £!5  16s.  9d.,  being 
double  the  amount  of  the  sum  whioh  would  have  been  deiaond- 


108  HERMENEUTIC  S, 

If  the  testament  of  a  Spaniard,  or  a  law  in  Spain, 
makes  use  of  the  word  christian,  there  can  be  no 
doubt  that  the  judge  is  bound  to  take  the  term  as 
synonymous  with  a  christian  who  professes  the  Ro- 
man cathohc  religion ;  for  the  word  cristiano  is 
never  taken  in  that  country  in  any  other  sense. 
Suppose,  however,  the  word  christian  is  used  in  the 
United  States,  it  would  be  against  the  rules  of  inter- 
pretation and  good  faith,  to  allow  one  sect  to  exclude 
another,  on  the  ground,  that  the  latter  does  not  fol- 
low orthodox  doctrines.  Sects,  in  their  zeal,  may 
deprive  each  other  of  the  name  derived  from  the 
common  founder  of  our  religion,  professed  by  all, 
and  make  specific  points,  e.  g.  a  belief  in  the  trinity, 
a  test  of  the  applicability  of  the  name  of  a  christian, 
but  the  interpreter  would  have  no  right  to  exclude 
unitarians  as  long  as  they  call  themselves  christians, 
profess  the  bible,  are  enumerated  by  every  statistical 


able  for  the  pilotage  of  the  ship — Mr  Bnllantine  referred  to  the 
Act,  and  said  he  was  of  opinion  that  steamers  ought  to  be  ex- 
empt by  the  common  sense  of  things.  Pilots  had  to  receive  a 
certain  education  before  they  were  licensed  ;  but,  however  ex- 
pert they  miglithe  in  conducting  sailing-vessels,  it  might  require 
a  different  degree  of  skill  to  conduct  a  steam-vessel.  A  pilot 
superseded  a  master  in  the  command  of  a  ship,  and  the  master 
of  a  steamer,  it  must  be  supposed,  was  appointed  because  he 
understood  the  nature  of  the  engines  and  macliinery.  He  did 
not  understand  how  the  new  science  was  to  be  engrafted  on  the 
ancient  custom.  However  expert  a  pilot  might  be  as  a  seaman, 
he  might  be  a  very  bad  engineer.  The  complaint  was  then 
proved,  and  as  tiie  Act  left  the  magistrate  no  discretion,  the 
eaptain  was  fined  in  the  penalty  above  stated  and  costs. 


CHAPTER     I  V. S  ECTION     XI.  109 

and  geographical  writer  among  the  christian  sects, 
and  are  considered  as  christians  by  every  one  in 
common  life,  whose  judgment  is  not  influenced  by 
sectarian  excitement.  Theology  has  not  to  decide 
the  point,  if  we  have  to  interpret  the  word  for  pur- 
poses not  lying  within  the  province  of  divinity. 

I  do  not  know  on  what  particular  ground  the 
judges  of  England  decided  the  suit  of  the  Attorney 
General  of  England,  versus.  Shore,  in  July,  1834, 
according  to  which  the  management  of  an  estate  left 
some  time  ago  by  a  lady  Hewly,  to  be  dispensed  in 
relief  to  christians,  was  taken  from  Unitarians,  as 
not  coming  within  the  meaning  of  the  bequest,  but 
if  the  decision  was  made  merely  on  the  ground  that 
they  do  not  believe  in  the  Trinity,  in  the  same  man- 
ner as  most  other  sects  do,  or  as  the  established 
church  does,  it  was  a  most  startling  decision,  trans- 
gressing altogether  the  limits  of  legal  interpretation, 
and  would  not  fail  to  be  soon  overruled  by  act  of 
parliament.  If  Unitarians  are  not  christians,  we 
must  re-write  ecclesiastic  history.  Perhaps  it  was 
strongly  proved  that  the  testator  did  mean  to  exclude 
the  Unitarians,  which,  however,  does  not  appear 
from  the  argument  of  Mr.  Cooper.^ 

(1)  Sabslance  of  tlie  Speech  of  Charles  Purton  Cooper,  in 
the  suit  of  tiie  Attorney  General  v.  Shore,  instituted  in  tho 
High  Court  of  Chancery,  respecting  Lady  Hewley'a  Founda- 
tiT>ns,  Wednesday,  July  2,  18;}4,  2d  edit.  London,  1S34. 

10 


110  HER  MENEU  TICS. 

I  will  give  one  more  instance,  which  seems  to  me 
strikingly  to  illustrate  some  remarks   which    have 
been  made  above.     Several  acts  of  parliament  regu- 
late the  lineal  measure  of  G.  Britain ;  the  last  of 
them.  5  George  IV.,  c.  74,  settles  the  length  of  a 
foot,  in  a  manner  that  no  doubt  at  any  time  can  ex- 
ist, by  enacting  the  precise  proportion  which  a  yard 
is  to  bear  to  a  pendulum  vibrating   seconds  in  the 
latitude  of  London.     It  is  36   inches  to  39.1393. 
Clearer  nothing  can  be.     If  an  act  of  parliament, 
therefore,  uses  the  terms  yard,  rod,  furlong  or  mile, 
it  would  seem  that  no  doubt  as  to  their  exact  mean- 
ing  can    any    longer    exist.     Yet    the    reform   act 
declares  thatjhe  residence  of  freemen,  who  have  a 
right  to  vote   at  a  place   called  Maldon,  should  be 
restricted  to  seven  miles  from  the  town  hall.     The 
important  question  arose  :  Are  these  seven  miles  to 
be  measured  by  the  road,  or  in  a  straight  line  over 
hedge  and  ditch  ?     If  the  latter,  fifty  or  sixty  more 
voters  belong  to  Maldon,  and  as  matters  stood  during 
the  election  of  1837,  a  candidate  would  have  obtain- 
ed a  seat  in  parliament,  directly  opposed  to  the  one 
who  must  have  been  returned,  if  the  other  interpre- 
tation had  been  adopted.^ 

XII.     If  technical  terms,  belonging  distinctly  to 
the  terminology  of  an  art  or  science,  are  used  as 

(l)     British  Papers  of  October.  1837 


CHAPTER     IV. SECTION     XII.        lit 

such,  the  same  good  faith  demands  that  they  must 
not  be  taken  in  their  common  but  in  their  technical 
sense,  as  has  been  mentioned  already. 

Corresponding  to  this  principle  is  this,  that  tropes 
be  taken  as  tropes,  and  direct  expressions  as  direct. 

This  principle,  a  deviation  from  which  has  caus- 
ed great  calamities,  is  generally  of  easy  application 
in  politics  or  law,  yet  not  always.  A  clergyman 
who  leaves  a  portion  of  his  property  '  for  the  great- 
est improvement  of  his  flock,'  will  be  understood  to 
mean  by  flock  the  aggregate  of  his  parishioners.  A 
minister,  however,  convinced  that  no  greater  benefit 
could  be  bestowed  upon  his  impoverished  congrega-. 
tion  than  the  improvement  of  their  sheep,  by  import- 
ing a  merino  ram,  had  with  great  expense  and 
infinite  trouble,  succeeded  in  obtaining  one.  For 
the  last  fifteen  years  he  had  bestowed  the  greatest 
care  upon  the  improvement  of  his  sheep  to  set  a 
good  example,  and  to  assist  his  parishioners  in 
improving  theirs.  When  he  died  it  was  not  easy 
for  his  executors,  whom  he  directed  by  his  will  to 
use  a  considerable  proportion  of  his  property  for  the 
'  greatest  improvement  of  his  flock,'  to  decide 
whether  the  testator  had  used  the  word  in  a  tropic 
sense  or  not. 

The  previously  mentioned  instance  of  the  New 
England  farmer  leaving  a  legacy  for  the  benefit  '  of 


112  HERMENEUTICb. 

the  poor  of  the  household  of  faith,'  is  Hkewise  in 
point. 

XIII.  The  special,  particular  and  inferior,  can- 
not defeat,  or  intentionally  militate  with  the  general 
and  superior.  If,  therefore,  we  may  attach  two  or 
more  different  meanings  to  a  sentence,  that  is  the 
true  one  which  agrees  most  with  the  general  and 
declared  object  of  the  text. 

The  late  Mr.  Girard  specifies  very  minutely  how 
his  orphan  asylum  is  to  be  built ;  but  the  architects 
have  since  declared  that  some  of  his  directions  can- 
not possibly  be  executed  without  great  injury  to  the 
building,  or  danger  to  its  inmates.  It  would  be  ab- 
surd to  suppose  that  the  testator  was  desirous  of 
defeating  the  general  object,  i.  e.  the  erection  of  an 
orphan  asylum,  by  a  specific  direction,  namely,  that 
of  architectural  details,  and  consequently  this  por- 
tion of  the  will  must  be  set  aside,  as  of  no  effect. 

When  the  particular,  however,  thus  evidently 
defeats  the  general,  whether  in  part  or  entirely,  we 
have  to  resort  to  construction,  in  order  to  obviate  the 
difficulty. 

By  way  of  exception,  the  specific  may  be  contra- 
ry to  the  general,  but  it  must  not  be  forgotten,  that 
exceptions  are  made  on  a  ground  still  more  general 
than  the  general  object  of  the  text ;  the  rule,  there , 
fore,  just  given,  is  perfectly  correct. 


CHAPTER     IV. SECTION     XIV.         113 

The  inferior  officer  has  to  obey  the  superior,  but 
if  the  former  is  convinced  that  the  latter  is  commit- 
ting an  act  of  treason,  for  instance,  by  manoeuvering 
so  that  the  troops  or  vessel  must  be  taken  or  defeat- 
ed, or  by  surrendering  treacherously  a  fortress,  or 
striking  the  flag  without  cause  or  avoiding  fighting, 
when  necessary,  the  inferior  officer  has  the  right  to 
resist ;  or,  in  case  of  urgency,  to  kill  him,  when 
there  is  no  other  remedy  in  the  midst  of  battle. 
Why  ?  Because  general  safety  is  a  law  superior 
even  to  military  or  naval  discipline. 

XIV.  Since  our  object  is  to  discover  the  sense 
of  the  words  before  us,  we  must  endeavor  to  arrive 
at  it  as  much  as  possible  from  the  words  themselves, 
and  bring  to  our  assistance  extraneous  principles, 
rules,  or  any  other  aid,  in  that  measure  and  degree, 
only  as  the  strictest  interpretation  becomes  difficult 
or  impossible,  (interpretation  precedes  construction) 
otherwise  interpretation  is  liable  to  become  predes- 
tined. Words  have  been  used  to  express  the  sense, 
and  through  the  words,  if  possible,  we  have  to  arrive 
at  it. 

Ernesti  most  solemnly  warns  against  the  belief  ^in 
a  perpetual  and  direct  divine  assistance  in  under- 
standing the  bible,  without  an  unremitted  zealous 
endeavor  to  arrive  at  the  sense  of  the  words,  by  the 
10* 


114  HERMENEUTltS. 

rules  of  sound  interpretation.  He  calls  it  the  abase 
of  reason,  for  by  so  doing  we  carry  our  opinion  into 
the  bible,  and  do  not  keep  within  the  limits  of  the 
word,  i.  e.  are  unwilling  to  learn  and  receive  the 
true  meaning. 

It  is  similar  with  those  who  have  their  own 
notions  of  public  welfare,  and  carry  them  into  a  con- 
stitution, instead  of  faithfully  interpreting  the  in- 
strument. There  are  many  individuals,  with  whom 
arguing  upon  public  measures,  or  subjects  of  public 
interest,  is  out  of  the  question,  for  speak  to  them 
about  law,  constitution,  custom,  interpretation,  rules, 
or  whatever  you  like,  their  invariable  answer  will  be, 
what  do  I  care  for  your  letters !  the  people's  wel- 
fare and  plain  common  sense  (by  which,  in  this 
case,  their  own  view  is  meant)  are  the  only  rules. 
They  expect,  by  way  of  intuition,  what  the  others 
expect  by  way  of  inspiration. 

The  more  we  apply  to  general  principles,  or  opin- 
ions not  expressed  in  the  words,  the  less  sure  we 
can  be,  whether  we  understand  the  individual  mean- 
ing of  the  text  or  not.  The  appeal  to  the  motives 
of  the  utterers  is,  in  most  cases,  doubtful,  in  many, 
dangerous  ;  because  it  lies  in  the  nature  of  things 
that  it  must  be  difficult,  or  impossible,  to  arrive  at 
them  otherwise  than  from  the  words  themselves, 
except  when  a  general  declaration  has  taken  place. 


CHAPTER     IV  . S  ECTION     XV.         115 

XV.  Having  said  thus  much,  it  becomes  neces- 
sary to  make  a  remark,  which,  perhaps  more  proper- 
ly belongs  to  the  subject  of  construction,  but  which 
may  find  a  place  to  avoid  apprehension.  We  have 
seen  that  interpretation  means  nothing  more  than 
finding  out  the  true  sense  and  meanino;.  But  it  is 
not  said  that  interpretation  is  all  that  shall  guide  us, 
and  although  I  believe  the  remarks  in  the  next  pre- 
ceding section  to  be  correct,  still  there  are  conside- 
rations, which  ought  to  induce  us  to  abandon  inter- 
pretation, or  with  other  words  to  sacrifice  the  direct 
meaning  of  a  text  to  considerations  still  weightier  ; 
especially  not  to  slaughter  justice,  the  sovereign  ob- 
ject of  laws,  to  the  law  itself,  the  means  of  obtaining 
it.  In  this  respect,  interpretation  is  much  like  po- 
litical economy,  a  highly  useful  science,  yet,  withal, 
its  object  is  to  ascertain  the  laws  which  regulate  the 
physical  existence  of  society,  and  there  are  subjects 
superior  to  this.  A  war  may  not  be  advisable  ou 
simple  grounds  of  political  economy  as  to  its  near- 
est effects,  and  yet  be  urgently  called  for  by  all  that 
is  sacred  to  a  nation,  to  mankind.  This  considera- 
tion is  frequently  forgotten  by  political  economists, 
who,  at  times  write,  as  if  political  economy  had  ac- 
tually supplanted  the  science  of  natural  law  and  pol- 
itics. 


116  H  E  R  M  E  N  E  U  T  I  C  S  . 

The  following  case  seems  to  me  so  interesting  in 
its  kind,  that  I  feel  warranted  in  stating  it.  When 
Lord  Bentink  was  Governor  General  of  India,  he 
abolished  flogging  in  the  native  army  —  may  his 
name  be  honored  ! — not  having  authority  to  do  the 
same  in  the  British  army  in  the  East.  If  a  sepoy 
professes  the  Christian  religion,  he  thereby  becomes 
subject  to  the  British  military  laws  proper,  evidently 
to  raise  him.  But  this  case  happened,  which  was 
thus  stated  in  a  Madras  paper. 

'  A  k\v  months  ago  the  following  case  occurred 
in  the  Bengal  army  :  —  A  Christian  Sepoy  deserted 
from  his  regiment,  returned  shortly  afterwards,  was 
tried  by  a  court-martial,  and  sentenced  to  be  cor- 
porally punished.  The  commanding  officer  thought 
himself  prohibited  from  confirming  the  sentence  by 
Lord  W.  Beiitink's  order  abolishing  corporal  pun- 
ishment in  the  native  army.  He  referred  the  sub- 
ject, however,  for  the  opinion  of  the  Judge  Advo- 
cate General,  who  gave  it  as  his  opinion  that  the 
sentence  was  correct,  and  might  be  carried  into  ef- 
fect, as  the  General  Order  of  24th  February,  1835, 
does  not  extend  to  Christian  drummers  or  musicians 
(to  which  prescribed  trade  the  unfortunate  individu- 
al happened  to  belong),  and  only  affects  native  sol- 
diers, 7iot  professing  the  Christian  religion^ 

Below,  the  reader  will  find  the  order  of  Lord 


CHAPTER     IV. SECTION      XV.  117 

Bentink,  and  the  interpretation  of  the  Judge  advo- 
cate general.^  Now,  even  waving  the  important 
principle  of  sound  construction,  that  in  cases  of 
doubt,  that  which  is  most  lenient  must  be  adopted, 
(see  farther  below,)  and  it  was  surely  no  stretch  of 
the  subject  to  consider  it  a  matter  of  doubt,  the 
Judge  advocate  general  was  wrong,  because  to  be 
subject  to  English  laws  proper,  was  meant  to  be  a 
benefit,  and  not  to  lead  to  the  monstrosity  that  the 
profession  of  Christian  religion  should  entitle  the 
Sepoy  to  three  hundred  lashes,  and  defeat  the  other 
privilege  which  his  darker  color  conferred  upon  him. 


(1)  '  Fort  William,  February  24, 1835. 

'The  Governor  General  of  India  in  Council  is  pleased  to  di- 
rect, that  the  practice  of  punishing  soldiers  of  the  native  army 
by  the  cat-o'nine  tails  or  rattan,  be  discontinued  at  all  the  pres- 
idencies, and  that  it  shall  henceforth  be  competent  to  any  regi- 
mental detachment,  or  brigade  court-martial,  to  sentence  a  sol- 
dier of  the  native  army  to  dismissal  from  the  service,  for  any 
offence  for  which  such  soldier  might  now  be  punished  by  flog- 
ging, provided  such  sentence  of  dismissal  shall  not  be  carried 
into  effect,  unless  confirmed  by  the  general  or  other  officer  com- 
manding the  division.' 

'  Sir, —  I  have  the  honor  to  I'eturn  the  proceedings  of  an  Eu- 
ropean court-martial,  held  in  the  16th  Native  Infantry  upon 
sepoy  and  musician  John  Dooming,  received  ^jiilh  your  letter. 
I  conceive  that  the  prisoner  Dooming  was  correctly  sentenced 
to  corporal  punishment,  and  that  Lieut.  Colonel  Tuliuch  might 
have  carried  the  same  into  effect  without  any  reference  to  you — 
the  award  not  exceeding  300  lashes.  The  general  order  of  24th 
February,  1835,  does  not  extend  to  Christian  drummers  or  mu- 
sicians, who  are  governed  by  the  rules  laid  down  in  the  Articles 
of  War  for  the  European  troops.  It  only  affects  native  soldiers 
not  professing  the  Christian  religion. 

'  G.  YouNQ,  Judo-e  Advocate  General. 

<  16th  April,  1836.' 


118  H  E  R  M  E  N  E  U  T  I  C  S  . 

Another  interesting  case  in  point  is  suggested  by 
the  trial  of  Sir  "William  Parkyns  for  high  treason  in 
1695,  before  Lord  C.  J.  Holt,  Lord  C.  J.  Treby, 
and  Mr.  Justice  Rokeby.  He  prayed  to  be  allowed 
counsel,  but  was  refused,  because  the  Statute  7 
VVm.  HL  ch.  3,  allowing  counsel  to  persons  indict- 
ed for  treason,  did  not  go  into  effect,  till  the  next 
day  after  that  on  which  he  was  tried.  It  was  in 
vain  that  the  prisoner  quoted  a  part  of  the  pream- 
ble, which  said  that  such  an  allowance  was  just  and 
reasonable.  The  reply  of  Lord  C.  J.  Holt  was, 
that  he  must  administer  the  law  as  he  found  it,  and 
could  not  anticipate  the  operation  of  an  act  of  par- 
liament by  even  a.  single  day.  Whatever  may  be 
thought  of  the  correctness  of  Lord  Holt's  decision 
in  point  of  law,  no  doubt  can  be  entertained,  that 
humanity  required  him  to  postpone  the  trial  for  one 
day,  and  thus  give  the  prisoner  the  benefit  of  the 
act.  Sir  William  Parkyns  was  convicted  and  exe- 
cuted. See  his  case  reported  at  length  in  the  tlnr- 
teenth  volume  of  the  State  trials,  Howell's  Ed. 

XVJ.  That  which  is  probable,  is  preferable  to 
the  less  probable ;  the  fair,  to  the  unfair;  the  cus- 
tomary, to  the  unusual ;  the  easy,  to  the  difficult : 
the  intelligible,  to  the  unintelligible. 

We  have  to  follow  the  special  rules  of  interpre- 
tation, which  have  been  given  by  proper  authority. 


CHAPTER      I  V . S  ECTION     XVII.       119 

Thus  the  Austrian  code  declares  that  the  German 
is  the  original  text,  and  shall  be  considered  and  re- 
ferred to  as  such,  in  all  interpretations  and  construc- 
tions of  its  translations  into  the  several  idioms  spo- 
ken in  the  Austrian  dominions. 

We  endeavor  to  find  assistance  in  that  which  is 
near,  before  we  proceed  to  that  which  is  less  so. 

If  we  do  not  understand  the  word,  we  try  whether 
its  connexion  in  a  sentence  will  shed  light  upon  it ; 
if  we  do  not  succeed,  we  endeavor  to  derive  assist- 
ance from  the  period  ;  if  this  be  unavailing,  we  ex- 
amine the  whole  instrument  or  work  ;  if  that  leads 
us  to  no  more  satisfactory  result,  we  examine  other 
writings,  &c.,  of  the  same  author  or  authority ;  if 
that  does  not  suffice,  we  resort  to  contemporaneous 
writers,  or  declarations,  or  laws  similar  to  that  which 
forms  our  text. 

What  we  have  said  before  includes  the  rule,  that 
we  are  by  no  means  bound  to  take  an  ambiguous 
word  in  that  meaning,  in  which  it  may  occur  in 
another  passage  of  the  same  text ;  for  words,  as  is 
well  known,  have  different  meanings  in  different 
contexts. 


XVII.     In  recapitulating  the  elementary  princ 
pies  of  interpretation,  we  shall  find  the  following. 


■^^ 


120  HERMENEUTICS. 

1.  A  sentence,  or  form  of  words,  can  have  but 
one  true  meaning. 

2.  There  can  be  no  sound  interpretation  without 
good  faith  and  common  sense. 

3.  Words  are,  therefore,  to  be  taken  as  the  utter- 
er  probably  meant  them  to  be  taken.  In  doubtful 
cases,  therefore,  we  take  the  customary  signification, 
rather  than  the  grammatical  or  classical ;  the  tech- 
nical rather  than  the  etymological  —  verba  ai-tu  ecc 
arte  —  tropes  as  tropes.  In  general,  ^he  words  are 
taken  in  that  meaning,  which  agrees  most  with  the 
character  of  both  the  text  and  the  utterer. 

4.  The  particular  and  inferior  cannot  defeat  the 
general  and  superior. 

5.  The  exception  is  founded  upon  the  superior. 

6.  That  which  is  probable,  fair,  and  customary,  is 
preferable  to  the  improbable,  unfair  and  unusual. 

7.  We  follow  special  rules  given  by  proper  au- 
thority. 

8.  We  endeavor  to  derive  assistance  from  that 
which  is  more  near,  before  proceeding  to  that  which 
is  less  so. 

9.  Interpretation  is  not  the  object,  but  a  means  ; 
hence  superior  considerations  may  exist. 

This  leads  to  construction. 


CHAPTER  V. 


Construction  is  unavoidable. —  The  Causes  why. — Instances. — 
Analogy  or  Parallelism  the  main  Guide  in  Construing. — Rules 
of  Construing.  —  We  begin  with  that  which  is  near.  —  Aim 
and  Object  of  the  Text.  —  Preambles  of  Laws.  —  Shall  the 
Motives  of  the  Utterer  guide  us  .''  —  How  far .' — '  Lex  Nemi- 
nem  cogit  ad  Lnpossibilia.' — Texts  conferring  Privileges. — 
Close  construction  necessary  in  construing  Contracts. —  Con- 
struction of  Promises  and  Obligations.  —  Maximum  and  Min- 
imum. —  That  which  agrees  most  with  the  Spirit  and  Tenor 
of  the  Text  is  preferable.  —  Effects  and  Consequences  of  the 
Construction  may  guide  us. —  Blackstone. — Antiquity  of  Law 
makes  frequently  extensive  Construction  necessary.  —  Habit- 
ual close  Interpretation  and  Construction  favorable  to  Civil 
Liberty. —  Words  of  a  relative  or  generic  Meaning  to  be  taken 
in  a  relative  or  expansive  Sense.  —  Rules  respecting  this 
Point.  — The  Weak  have  the  Benefit  of  Doubt.  — The  Supe- 
rior Object  cannot  be  defeated  by  the  Inferior.  —  Recapitula- 
tion of  the  Principles  of  Construction. 

I.  Construction  is  unavoidable.  Men  who  use 
words,  even  with  the  best  intent  and  great  care  as 
well  as  skill,  cannot  foresee  all  possible  complex 
cases,  and  if  they  could,  they  would  be  unable  to 
jirovide  for  them,  for  each  complex  case  would  re- 
quire its  own  provision  and  rule;  times  and  relations 
11 


122  HERMENEUTICS. 

change,  so  that  after  a  long  lapse  of  time,  we  must 
either  give  up  the  letter  of  the  law,  or  its  intent, 
since  both,  owing  to  a  change  in  circumstances,  do  not 
any  longer  agree.  If,  with  all  imaginable  wisdom  in 
the  utterer,  construction  becomes  thus  necessary,  it 
is  still  more  so  the  case,  from  other  circumstances. 
Interpretation,  seeking  but  for  the  true  sense,  for- 
sakes us,  when  the  text  is  no  longer  directly  appli- 
cable, because  the  utterer,  not  foreseeing  this  case^^ 
did  not  mean  it,  therefore  it  has  no  true  sense  in 
this  particular  case. 

By  the  charter  of  appointment  of  the  hereditary 
lord  hi^h  chamberlain  of  England,  he  has  a  right  to 
the  dress  worn  by  the  monarch  at  each  coronation  in 
which  the  officer  is  to  appear  on  the  first  court  after 
that  ceremony.  The  present  monarch  is  a  queen  ; 
was  the  officer  to  appear  in  her  majesty's  dress  ? 
This  instance  has  been  taken,  on  account  of  the 
glaring  absurdity  to  which  interpretation  would  have 
led  ;  or,  rather,  interpretation  was  not  necessary, 
because  there  is  no  dubious  sense  at  all.  The 
framer  of  the  charter  did  not  think  of  the  case  of  a 
queen's  coronation.  The  instrument  itself,  there- 
fore, expresses  nothing  in  regard  to  this  case  ;  for 
impossible  things  are  nowhere  to  be  supposed  ;  and 
there  are  very  many  things  impossible,  though  not 
physically    impossible.     It    was   impossible  for  the 


CHAPTER    V. SECTION     I.  123 

lord  high  chamberlain  to  appear  in  petticoats.  Lu- 
dicrous as  this  instance  seems,  there  are  many  others 
touching  subjects  of  the  highest  importance,  which 
are  equally  strong  in  their  character. 

It  appeared  in  a  case  in  London,  in  October, 
1837,  that  there  are  five  hundred  acts  relating  to 
turnpikes  and  roads,  many  of  which  affect  the  juris- 
diction over  them,  and  clash  most  seriously.  Inter- 
pretation cannot  lead  us  out  of  such  mazes. 

A  cotemporary  periodical  made,  not  long  ago,  the 
following  remark,  respecting  property  left  for  public 
purposes,  especially  for  schools,  and  other  institu- 
tions for  educaiion,  if  they  prescribe  particulars  re-, 
lating  solely  to  the  period  of  the  foundation.^ 

'  An  adherence  to  original  rules,  when  such  rules 
are  no  longer  applicable,  owing  to  change  of  circum- 
stances, is,  in  effect  to  defeat  the  will  of  the  testa- 
tor. In  the  instance  of  private  property,  an  individ- 
ual, by  a  rule  of  law,  called  the  rule  against  perpe- 
tuities, is  not  allowed  to  fetter  an  inheritance  beyond 
a  life  or  lives  in  being,  and  twenty-one  years  after- 
wards ;  the  average  of  which  time  has  been  calcu- 
lated to  amount  to  70  years.  For  a  longer  time 
than  this  it  cannot  be  conceived  that  the  circum- 
stances  of  a  family  can  be  foreseen ;  and,  for  this 

(1)  London  Quarterly  Journal  of  Education,  No.  XIX,  articl$ 
on  Lieber's  Girard  Report. 


]S}4  HERMENEUTICS. 

reason,  the  law  gives  the  power  to  the  individual  in 
possession  at  the  expiration  of  that  period,  to  re- 
model the  limitations  of  the  property  to  suit  the  al- 
tered position  of  the  family  in  society.  Following 
this  example,  might  not  some  very  salutary  regula- 
tions be  laid  down  with  regard  to  property  given  for 
public  purposes.  Nothing  can  be  more  absurd,  than 
to  adhere  to  the  letter.' 

I  proceed  now,  to  the  general  principles  of  con- 
struction. 

II.  All  principles  of  interpretation,  at  all  appli- 
cable to  construction,  according  to  its  definition,  are 
good  and  vahd  also,  with  regard  to  construction,  for 
the  same  reasons  that  they  held  in  interpretation. 

The  main  aid  and  guide  of  construction  is,  as  has 
been  stated  already,  analogy ;  understanding  the 
term  as  explained  in  chapter  iii,  iii,  or  rather,  paral- 
lelism. Following  a  similar  principle  to  that  given 
in  chap,  iv,  xiv,  we  shall  find  that  in  use  of  paral- 
lelism, we  have  carefully  to  begin  with  that  which  is 
near,  and  proceed  to  that  which  is  less  so,  according 
only,  as  we  find  ourselves  unable  to  construe,  without 
seeking  means  in  a  wider  circle. 

If  we  have  to  construe  part  of  a  speech,  will,  law, 
or  constitution,  we  ought  first  to  inquire  whether  we 
can  construe  it  by  way  of  analogy  from  the  same 


CHAPTER     v.—  SECTION     II.  125, 

speech,  will,  law,  or  constitution;  if  not,  whether 
there  are  similar  acts,  &c.,  which  have  proceeded 
from  the  same  authority.  If  we  have  to  construe 
commentaries,  we  have  to  try  first  whether  we  can 
draw  any  assistance  from  the  commentaries  or  glosses 
of  the  same  author,  before  we  proceed  to  those  of 
another ;  and  before  we  seek  for  assistance  in  the 
whole  literature,  we  ought  to  examine  the  commen- 
tators and  writers  of  the  same  period.  So  the  theo- 
logian, in  order  to  interpret  or  construe  a  sentence  of 
Paul,  must  first  inquire,  whether  he  can -explain  it 
from  other  parts  of  Paul's  writings  ;  if  not,  he  must 
then  inquire  whether  he  can  find  assistance  in  other 
writings  of  the  new  testament,  qind  so  on. 

There  may  exist,  of  course,  some  reasons,  why 
the  interpreter  or  constructor  should  omit  these 
links,  as  he  would  be  obliged  to  do  in  cases  where 
Paul  quotes  passages  of  the  old  testament,  or  uses 
words,  which  have  reference  to  the  customs  or  rites 
of  Greek  paganism.^ 

The  Austrian  civil  code,  introduction,  7,  gives 
this  rule : 

'  If  a  legal  case  cannot  be  decided,  either  by  the 
words,  or  the  natural  sense  of  a  law,  it  is  necessary 

(1)  See  Ernesti  Institutio,  parts  I.  and  II.  and  his  commenta- 
tors, Ammon,  Stuart,  Terrot,  &-c.,  and  Home's  introduction  to 
the  Critical  Study  of  Uie  Scriptures,  vol.  II.  part  II.  Book  II, 
Section  I.  and  scq. 

n* 


126  HER  MENEU  TICS, 

to  refer  to  similar  cases  distinctly  decided  by  the 
icivvs,  (in  this  code,)  and  to  the  reasons  of  other  laws 
akin  to  the  doubtful  case.  If  the  case  still  remains 
doubtful,  it  must  be  decided  according  to  the  princi- 
ples of  natural  law,  applied  to  the  carefully  collect- 
ed and  maturely  weighed  circumstances.'  We  have 
here  the  gradual  extension  of  construction  in  con- 
centric circles  distinctly  prescribed.  See,  also,  the 
French  civil  code,  1161. 

III.  In  conformity  with  the  primary  rule,  which 
directs  us  to  proceed  from  that  which  is  near,  to  that 
which  is  less  so,  we  have  likewise  to  inquire  first  as 
to  the  aim  and  object  of  the  text,  before  we  apply 
to  more  general  rules,  reasons,  or  arguments  ;  and 
as  it  is  frequently  impossible  to  learn  the  object  of  a 
law  more  clearly  than  by  an  inquiry  into  the  causes 
which  lead  to  its  being  issued,  a  knowledge  of  these 
causes  is  of  the  highest  importance.  See  1  Black- 
stone,  59.  Indeed,  the  general  principle,  that  any 
thing,  which  we  are  desirous  clearly  to  understand, 
must  be  taken  with  all  its  adjuncts  —  a  principle  of 
peculiar  importance  respecting  precedents  —  would 
demand  the  rule  just  given. 

The  Prussian  code,  introduction,  46,  says  :  '  in 
deciding  upon  dubious  cases,  the  judge  is  not  allow- 
ed to  substitute  any  other  meaning  for  the  laws  than 
that  which  clearly  appears  from  the  words,  their 


CHAPTER     V. SECTION     IV.  127 

connection,  with  reference  to  the  doubtful  subject; 
or  from  the  next  and  undoubted  reason  of  the  law.^ 
This  is  the  reason  why  Mr.  Bentham,  in  his  Prin- 
ciples of  Legislation,  advises  that  no  law  should  be 
passed  without  a  proper  preamble,  stating  the  rea- 
sons and  causes  of  the  law.  Still,  preambles  cannot 
altogether  supersede  construction,  inasmuch  as  they 
themselves  must  necessarily  be  sometimes  subject  to 
construction  or  interpretation.  Such  as  the  pream- 
bles have  been  so  far,  they  are  not  always  safe 
guides,  nor  are  the  titles  of  laws.  See  1  Kent's 
Commentaries,  section  XX.  p.  460,  and  sequel. 

IV.  We  have  seen  already,  that,  in  many  cases, 
it  is  difficult  to  discover  the  motives,  which  may 
have  prompted  those  who  drew  up  the  text ;  but  it 
is  also  dangeious  to  construe  upon  supposed  motives, 
if  they  are  not  plainly  expressed.  Every  one  is 
apt  to  substitute  what  his  motives  would  have  been, 
or  perhaps,  unconsciously,  to   fashion   the  supposed 


(1)  If  1  quote  frequently  from  the  Prussian  code,  and,  perhaps, 
more  so  than  from  any  other  code  of  the  European  continent,  it 
is  simply  because  it  is  a  fact,  that  far  more  patience  has  been 
bestowed  upon  it,  in  devising  it,  whatever  may  be  our  opinion 
of  some  of  its  details.  The  remarks  of  Mr.  de  Savigny  in  his 
work,  'On  the  Aptitude  of  the  present  Ag-e  for  Legislation  and 
Jurisprudence,'  translated  by  A.  Hayward,  Esq.,  of  Lincoln's 
Inn,  on  the  history  of  this  code,  the  long  time  spent  in  maturing 
it,  and  a  variety  of  means  resorted  to  in  order  to  perfect  it,  are 
worthy  of  perusal,  though  we  do  not  agree  with  Mr.  de  Savigny 
on  the  main  points,  as  to  the  subject  of  his  work. 


128  HERMENEUTICS. 

motives  according  to  his  own  interests  and  views  of 
the  case  ;  and  nothing  is  a  more  ready  means  to 
bend  laws,  charters,  wills,  treaties,  &c.,  according  to 
preconceived  purposes,  than  by  their  construction 
upon  supposed  motives.  To  be  brief,  unless  mo-, 
lives  are  expressed,  it  is  exceedingly  difficult  to  find 
them  out,  except  by  the  text  itself;  they  must 
form,  therefore,  in  most  cases,  a  subject  to  be  found 
out  by  the  text,  not  the  ground  on  which  we  con- 
strue it. 

The  Prussian  code  distinctly  declares,  respecting 
privileges,  that,  *  in  doubtful  cases,  reference  shall 
be  had  rather  to  the  proper  contents  of  the  privilege 
(i.  e.  the  instrument  granting  it)  than  to  the  motives 
specified  in  the  first  grant  of  the  same.'  Intro- 
duction, Of  Laws  in  General,  58. 

V.  No  law,  will,  or  v.-hatever  the  document  may 
be,  which  forms  the  text,  can  be  understood  to  de- 
mand impossible  things.  If  a  provision,  or  part  of 
it,  directly  does  so,  that  part  is  void,  and»not  on  that 
account  the  whole.  '  Lex  neminem  cogit  ad  impos- 
sibilia.' 

A  short  time  ago,  the  Legislature  of  South  Caro- 
lina passed  an  act  incorporating  a  bank,  in  which 
the  day,  when  the  subscription  books  were  to  be 
opened,  and  that  on  which  they  were  to  be  closed, 


CHAPTER     V  . S  ECTION     VI.  129 

was  fixed.  Before  the  act,  however,  finally  passed, 
an  amendment  was  made,  which  fixed  the  day  on 
which  the  books  were  to  be  opened,  beyond  that  on 
which  they  were  to  be  closed,  without  altering  the 
latter.  The  act  passed  in  this  state,  in  the  press  of 
business.  Similar  mistakes  have  happened  in 
England. 

VI.  Whenever  the  text,  to  be  interpreted,  be- 
stows privileges  upon  one  or  some  persons,  (to  the 
exclusion,  therefore,  of  others)  ambiguous  parts  are 
always  to  be  construed  in  favor  of  the  non-privileged, 
provided  the  object  of  the  privilege  be  not  thereby 
defeated. 

The  commonest  principle  of  fairness  dictates  the 
former  ;  common  sense,  the  latter.  Those  who  are 
privileged  are  not  farther  to  be  favored  than  the  in- 
strument, granting  the  privilege,  distinctly  indicates. 
If  a  favor,  or  privilege,  has  been  granted,  in  consid- 
eration of  some  service  done,  or  to  be  done,  they 
must  be  considered  as  equivalents,  and  the  matter 
as  settled. 

In  addition  to  English  commentaries  on  this  sub- 
ject, we  mention  here  the  Prussian  code,  introduction, 
54,  '  privileges  and  exemptions  must  be  construed, 
in  doubtful  cases,  so  as  to  be  least  injurious  to  the 
third  (i.  e.  the  non-privileged)  person.'  The  civil 
code  directs  the  same. 


130  HER  JIENEU  TICS. 

VII.  The  more  the  text  partakes  of  the  char- 
acter of  a  compact,  the  more  necessary  becomes 
close  construction ;  for  the  compact  must  be  ac- 
knowledged as  the  true  and  sole  ground  of  agree- 
ment ;  and  the  nature  of  the  text  obliges  us  to 
presume  that  much  care  has  been  bestowed  upon 
the  selection  of  words ;  still,  if  a  word,  or  sentence 
of  a  contract,  leaves  a  decided  doubt,  sound  sense 
dictates  that  they  are  to  be  taken  most  strongly 
against  the  party  using  it;  because  it  was  his  affair 
to  word  the  instrument  well:  '  Verba  amhigua  for- 
tius accipiuntur  contra  proferentemJ'  The  civil 
law  acknowledges  the  same  principle:  ' In  obscuris 
quod  xninimum  est,  sequimur,  secundum promissor em 
interpretamur:     Dig.  L.  50,  Tit.  17,  1.  9,  58,  90. 

VIIT.  Whenever  the  text  expresses  the  promise 
or  obligation  of  performing  some  act,  the  demand 
contained  in  the  text  is  to  be  taken  as  the  minimum, 
if  it  involves  a  sacrifice  of  the  performer  and  a 
benefit  of  the  person  towards  whom  the  act  is  to  be 
performed  ;  but  as  the  maximum,  if  the  performance 
of  the  act  is  to  the  advantage  of  the  performer,  and 
the  disadvantage  of  the  other  party. 

Good  faith  and  common  sense  are  sufficient  to 
show  the  justice  of  this   rule  highly   important,  as 


CHAPTER     V. SECTION     VIII.        131 

the  disregard  of  it  is  contrary  to  these  first  elements 
of  all  interpretation,  and  defeat  the  objects  of  any 
text  of  the  above  charter. 

A  leaves  a  large  fortune  to  B,  on  condition  to  pay 
annually  the  sum  of  £500  to  a  hospital ;  in  case  of 
failure,  C  shall  come  in  as  heir  and  have  half  of  the 
property.  B  is  of  a  peculiarly  benevolent  disposi- 
tion, and  pays  £1000  ifistead  of  £500  to  the  hos- 
pital. C  brings  in  an  action,  claiming  half  of  the 
fortune,  on  the  ground  that  B  has  not  strictly  com- 
plied with  the  terms  of  A's  will.  The  judge  would 
be  obliged  to  decide  that  there  is  no  ground  for  the 
action,  because,  in  this  case,  the  minor,  £500,  is 
contained  in  the  major,  £1000.  B  has  performed 
his  obligation,  and  done  something  over  and  above 
it.  The  sum  of  £500,  mentioned  in  the  will,  is  the 
minimum,  because  its  payment  is  a  sacrifice  to  B, 
and  a  benefit  to  the  hospital. 

The  case,  related  above,  when  Spinola  was  to 
garrison  one  thousand  men  in  Wesel,  according  to 
the  articles  of  surrender,  and  on  complaint  that  he 
had  sent  in  more,  pleaded  that  he  complied  with  the 
articles,  because  he  had  sent  one  thousand  men,  and 
that  the  said  articles  did  not  stipulate,  that  he  should 
not  garrison  more  than  one  thousand  in  Wesel,  is 
likewise  in  point. 


132  HER  MENEU  TICS. 

It  was  faithless  and  against  common  sense  in 
Spinola  to  interpret  thus  ;  the  capitulation  expressed 
the  maximum,  because  the  performance  of  the  act 
was  beneficial  to  him,  and  exacted  a  sacrifice  on  the 
part  of  the  citizens.  Indeed,  the  number  of  the 
soldiers  to  be  quartered  in  Wesel,  of  itself  was  of 
no  importance  ;  it  was  the  support  they  required, 
and  their  military  importante  with  regard  to  the 
prosecution  of  the  war,  which  made^the  capitulation 
desirable.  The  citizens  of  Wesel  would  have  had 
no  right  to  complain  had  Spinola  quartered  with 
them  800  men  only ;  but  the  ca'se  would  have 
changed  had  the  1000  men  been  demanded,  on  ac- 
count of  security,  for  instance,  or  that  they  might 
have  an  excuse  for  surrendering,  by  showing  his 
strength. 

If,  however,  the  service  to  be  performed,  and 
stipulated  for,  is  of  a  kind  that,  if  the  measure 
agreed  upon  be  exceeded,  it  becomes  an  injury, 
good  faith  and  common  sense  oblige  us  to  consider 
the  stipulation  a  maximum.  To  many  readers,  all 
these  remarks  may  appear  superfluous  ;  yet  have 
violations  of  these  elementary  rules  taken  place  so 
often,  in  order  to  rob  people  of  their  property,  that 
it  is  right  we  should  clearly  present  them  to  our 
mind.  Respecting  the  last  rule,  I  instance  a  case 
in  which  A  was  obliged  to  let  B  have  sufficient  water 


CHAPTER     V. SECTION     IX.,     X.        133 

from  a  dyke,  to  drive  B's  mill.  It  was  stipulated 
that  a  certain  flood  gate  should  not  be  closed.  In 
consequence  of  a  dispute,  A  opened  two  instead  of 
one,  and  destroyed  much  of  B's  property,  maintain- 
ing that  he  had  complied  with  the  contract. 

IX.  As  we  are  bound  to  prefer  that  which  is 
fair  to  that  which  is  less  so,  if  the  mere  words  of 
the  text  may  mean  one  or  the  other,  so  we  are  bound 
to  prefer  in  construction  that  which  agrees  most  with 
tlie  substance  of  the  text. 

1  Blackstone,  60,  French  civil  code,  1158  ;  Pu- 
fendorf,  Law  of  Nature  and  Nations,  Book  V.  12. 
Grotius  as  quoted  above. 

X.  The  effect  and  consequences  may  frequently 
guide  us  in  construction,  but  with  the  same  caution 
which  we  recommended  with  regard  to  deriving 
assistance  from  the  motives  of  the  utterer  ;  for  peo- 
ple imagine  very  different  effects  to  ensue  from  the 
same  causes,  and  again,  they  have  very  different 
opinions  respecting  the  beneficial  tendency  of  the 
same  effect. 

See  1  Blackstone,  59  ;  1  Kent's  Commentaries, 
Sect.  XX.  460,  and  sequel. 

Though  I  shall  touch  upon  the  subject  of  the 
construction  of  laws  separately,  I  will  give  here 
12 


134  HERMENEUTIC  S. 

Blackstone's  words  respecting  it ;  because  they  are 
applicable  in  a  wider  circle  than  merely  to  laws. 
He  says,  1.  59, — 'The  fairest  and  most  rational 
method  to  interpret  the  will  of  the  legislator,  is  by 
exploring  his  intentions  at  a  time  when  the  law  was 
made,  by  signs,  the  most  natural  and  probable. 
And  these  signs  are  either  the  words,  the  context, 
the  subject-matter,  the  effects  and  consequence,  or 
the  spirit  and  reason  of  the  law.' 

I  have  never  been  able  to  understand  how  the 
subject-matter,  effects,  &lc.,  can  be  called  signs. 
Pufendorf  has  been  justly  followed  by  Blackstone 
on  this  subject,  and  the  words  of  the  former  are  ; 
'  Signa  ilia  sunt  duum  generum,  verba,  et  aliae  con- 
jectural ;  quse  considerantur  aut  seorsim  aut  conjunc- 
tim.'  De  Jure  N.  et  G.  v.  cap.  xii.  2.  But  the 
word  sign  must  be  taken  here  in  the  peculiar  sense 
which  Pufendorf  defines  in  the  work  itself. 

XI.  The  farther  removed  the  time  of  the  origin 
of  any  text  may  be  from  us-,  the  more  we  are  at 
times  authorized  or  bound,  as  the  case  may  be,  to 
resort  to  extensive  construction.  For  times  and  the 
relations  of  things  change,  and  if  the  laws,  &;c.,  do 
not  change  accordingly,  to  effect  which  is  rarely  in 
the  power  of  the  construer,  they  must  be  applied 
according  to  the  altered  circumstances,  if  they  shall 


CHAPTER     V. SKCTION    XI.  135 

continue  to  mean  sense  or  to  remain  beneficial.  The 
benefit  of  the  community  is  the  supreme  law,  and 
however  frequently  this  may  have  been  abused,  and 
is  daily  abusing,  it  is  nevertheless  true.  Whether 
we  rejoice  in  it  or  not,  the  world  moves  on,  and  no 
man  can  run  against  the  movement  of  his  time. 
Laws  must  be  understood  to  mean  something  for  the 
advantage  of  society  ;  and  if  obsolete  laws  are  not 
abolished  by  the  proper  authority,  practical  life  itself, 
that  is,  the  people,  will  and  must  abolish  them,  or 
alter  them  in  their  application  ;  even  a  Mansfield 
was  obliged  to  charge  the  jury,  in  some  cases,  to  find 
the  value  of  stolen  articles  under  forty  shillings, 
when  the  real  and  evident  value  was  far  higher. 

Great  evil  has  arisen  at  various  epochs  from  in- 
sisting on  established  laws  in  times  of  great  crisis  ; 
as  if  the  human  mind  could  be  permanently  fettered 
by  laws  of  by-gone  generations.  It  was  the  misfor- 
tune of  the  catholic  party,  at  the  time  of  the  refor- 
mation, that  they  did  not  understand  the  regenerating 
spirit  of  Europe,  and  thought  they  could  conjure  it 
by  the  formulas  of  ancient  laws.  Neither  the  papal 
excommunication,  nor  the  canon  law,  was  able  to 
banish  or  encircle  this  spirit.  Previous  to  almost 
every  revolution,  there  exists  a  party  whose  charac- 
teristic trait  is  this  mistake. 


136  HERMENEUTICS. 

A  single  glance  at  the  book  on  the  State  in  the 
Political  Ethics  will  suffice,  I  trust,  to  protect  me 
against  any  imputation  that  1  do  not  sufficiently 
value  the  supremacy  of  the  law.  I  consider  it  all 
important. 

XII.  Yet  it  is  necessary  to  rememTser  well,  that 
in  general,  nothing  is  so  favorable  to  that  great 
essential  of  all  civil  liberty — the  protection  of  indi- 
vidual rights,  as  close  interpretation  and  construction. 
Most  laws  lose  in  their  protective  power,  in  the 
common  intercourse  of  men,  (which  is  the  most  im- 
portant, because  of  daily  and  hourly  occurrence,) 
according  as  they  are  loosely  interpreted.  Several 
surprising  decisions  of  the  English  courts  exist,  in- 
deed, which  were  the  consequence  of  an  apparently 
literal  interpretation.  Verdicts  even  are  not  wanting, 
which  evidently  defeated  the  object  of  the  law,  in 
consequence  of  adhering  to  its  mere  letter ;  yet  I 
do  not  hesitate  to  avow  my  firm  belief  that  England 
owes  her  civil  liberty,  and  that  civic  spirit,  so  com- 
mon in  the  whole  country,  compared  to  many  others, 
to  no  circumstance  in  a  higher  degree  than  to  the 
habitually  close  construction  of  her  laws.  On  the 
other  hand,  the  laws  of  the  European  continent 
were,  for  a  long  time,  loosely  interpreted,  and  con- 
strued according  to  the  effects  and  presumed  motives 


CHAPTER    V  . S  E  C  T  I  O  N      XIII.        1 .37 

of  the  legislator,  he,  whenever  there  was  a  question 
of  right  between  the  individual  and  those  who  pos- 
sessed the  power,  or  the  same  law  was  differently 
interpreted  on  different  occasions. 

The  result  of  our  considerations  then  will  be,  that 
we  ought  to  adhere  to  close  construction,  as  long  as 
we  can  ;  but  we  must  not  forget  that  the  '  letter 
kllleth,'  and  an  enlarged  construction  becomes  nec- 
essary, when  the  relations  of  things  enlarge  or 
change.  We  ought  to  be  careful,  however,  not  to 
misjudge  our  own  times  ;  for  every  one,  who  is  de- 
sirous of  justifying  an  extravagant  construction,  does 
it  on  the  ground,  tliat  the  case  is  of  a  peculiar  char^ 
acter  and  the  present  time  a  crisis.  Every  dema- 
gogue, tyrant,  or  selfish  man,  in  public  or  private 
life,  resorts  to  this  argument,  to  palliate  unwarranted 
acts  before  others,  or  his  own  conscience.  However 
delicate  this  subject  may  be,  the  truth  of  what  has 
been  said  is  nevertheless  apparent ;  and,  to  be  safe 
in  this  particular,  we  must  return  to  one  of  the  first 
principles,  that,  without  good  faith  and  conscien- 
tiousness, there  is  no  true  interpretation  or  construc- 
tion possible. 

XIII.     Words  of  a  relative  or  of  a  generic  niean-i 
ing  must  be  taken  in  a  relative  or  expansive  sense, 
if  the  character  and  object  of  the  text  oblige  us  to 
12* 


13- >  HERMENEUTIC  S. 

do  so,  but  not  if  they  have  been  used  to  express 
something  definite  or  absolute. 

If  the  term  '  genteel  education '  is  used  with  ref- 
erence to  the  character  of  a  school  to  be  supported 
by  certain  foundations,  it  will  be  found  necessary  to 
take  the  expression  in  that  meaning,  which  every 
successive  period  attaches  to  it.  If  the  direction,, 
however,  is  to  instruct  in  certain  branches  which 
have  been  enumerated,  and  it  were  then  added:  and 
'  all  branches  called  a  genteel  education,'  there 
might  be  reason  to  limit  the  meaning  to  that  of  the 
time. 

The  lawmakers  cannot  have  had  Mr.  Perkins's 
steam-gun  in  view  specifically,  if  they  passed  the 
law,  relating  to  murderous  arms,  previous  to  the  in- 
vention of  the  steam-gun  ;  yet  the  word  arms  nec- 
essarily includes  this  species,  because  the  steam-gun 
agrees  in  all  essentials  with  the  other  arms  specifi- 
cally mentioned  in  that  law. 

'  A  suit  of  clothes '  means  (in  the  United  States) 
something  very  different  from  what  it  did  formerly, 
or  does  at  present,  in  other  countries.  A  judge,  in 
the  state  of  Kentucky,  decided  that  a  suit  of  clothes 
to  be  given,  according  to  stipulation,  to  an  appren- 
tice, after  having  served  his  time,  ought  to  be  worth 
forty  dollars. 


CHAPTER     V. SECTION     XIII.  139 

It  has  been  considered  that  the  charter  of  Har- 
vard University,  when  making  use  of  the  term 
'christian  doctrine,'  apphes  as  well  to  unitarians  as 
trinitarians  ;  though  no  unitarians  were  existing  in 
New  England,  when  the  charter  was  granted. 

It  is  necessary  to  pay  attention  to  three  points  in 
questions  of  this  character  : 

First.  Did  the  utterer  use  the  doubtful  word  in  a 
definite,  absolute,  or  circumscribed  meaning ;  or  did 
he  make  use  of  the  word  as  a  relative,  generic,  or 
expansive  term. 

Secondly,  if  the  latter  be  the  case^  what  did  the 
utterer  consider  as  an  absolute  and  definitely  char- 
acteristic, or  as  a  generic  sign  :  what  may  be  consid- 
ered in  that  which  is  designated  by  a  certain  word, 
as  fixed  and  unalterable,  and  what  as  variable, 
expansive,  or  contractive,  according  to  the  chajige 
of  circumstances  and  relations  between  things  and 
men. 

Thirdly,  is  the  subject  to  which  the  text  relates 
of  that  elementary,  vital,  and  absorbing  importance 
to  society,  that  every  other  interest,  or  consideration, 
must  yield  ;  so  that  in  construing  the  difficult  parts 
of  the  text,  we  are  obliged  to  regulate  our  decision 
rather  by  the  meaning  which  the  words  would  now 
have,  considering  things  and  circumstances  as  they 
now  exist,  than  by  the  known   meaning  which  the 


140  II  E  RMENEU  TIC  S. 

iitterer  attached  to  them,  considering  the  then  rela- 
tions. Here  the  difference  between  interpretation 
and  construction  is  evident. 

The  many  foundations,  which  were  made  before 
the  time  of  the  reformation  for  the  support  of  cler- 
gymen, or  the  diffusion  of  Christianity  by  other 
means,  were  construed  by  the  protestants  to  mean, 
that  the  pious  founders  were  anxious  to  diffuse  true 
religion,  and  that  at  the  time  of  the  reformation  they 
would  have  meant  biblical  or  evangelical  Christianity, 
or  whatever  else  it  may  be  called.  Interpretation 
cannot  but  acknowledge  that  the  founders  had  dis- 
tinctly and  positively  the  Roman  apostolic  catholic 
religion  in  view.  They  neither  thought  of  protes- 
tantism, nor  would  they  have  viewed  its  doctrines,  at 
their  time,  with  any  thing  else  than  aversion. 

Yet  religion  is  too  important  to  allow  any  genera- 
tion to  forestall  every  future  change.  What  were 
the  catholic  priests  to  do,  when  the  people  had  be- 
come protestant  ? 

The  conversion  of  funds,  left  for  the  reading  of 
masses  for  the  dead,  into  school  funds,  was  not  in 
consequence  of  any  transcendant  construction.  This 
was  an  absolute  change,  which  could  only  take  place 
in  consequence  of  high  legislative  action.  When, 
on  the  other  hand,  individuals,  who  united  in  their 
capacity  the  character  of  priest  and  sovereign,  and 


CHAPTER     V.  SECTION     XIV.,  XV.     141 

who  had  been  elected  on  the  very  ground,  that  they 
were  catholic  priests,  and,  consequently,  not  married, 
embraced  protestantism  without  resigning,  but,  on 
the  contrary,  declaring  themselves  hereditary  princes, 
after  having  married,  it  was  revolution,  and  can  be 
judged  of  only  on  that  ground.^ 

XIV.  Whenever  a  decision  between  the  power- 
ful and  the  weak  depends  upon  our  construction,  the 
benefit  of  the  doubt  is  given  to  the  weak.  Our 
construction  must  of  course  not  defeat  the  general 
object  of  the  text. 

This  principle  has  always  been  acknowledged, 
though  it  has  not  always  prevailed.  When  the 
elector  of  Saxony  demanded  that  Luther  should  be 
called  to  the  diet,  assembled  at  Worms,  and  be 
heard,  the  elector  urged  that  it  is  customary  accord- 
ing to  German  liberty,  to  prefer,  in  doubtful  cases, 
the  lenient  one.^ 

XV.  The  general  and  superior  object  cannot  be 
defeated  by  a  less   general   and    inferior    direction  ; 

(])  Prince  Albert  of  Prussia,  the  master  of  the  Teutonic 
order,  thus  made  himself  duke  of  Prussia  by  revolution  alone  ; 
and  it  was  revolution,  which  Luther  advised  some  prelates  to 
resort  to,  when  he  called  upon  them  to  profess  protestantism  and 
declare  themselves  independent  sovereigns.  No  construction 
whatever  could  arrive  at  this  decision  ;  but  revolutions  become 
at  times  indispensable  ;  this,  however,  is  not  the  place  to  discuss 
the  subject. 

(•2)  Palavicinus,  I.  2(J,  5. 


142  H  E  p.  :i  E  N  E  U  T  I  C  S  . 

and,  in  general,  the  higher  prevails  over  the  lower, 
the  principle  over  a  specific  direction. 

Pnfendorf  gives,  to  illustrate  another  rule,  how- 
ever, the  instance,  that  there  exists  a  law  that  no 
citizen  shall  carry  arms  on  festivals  ;  another  to 
assemble  with  arras,  as  soon  as  the  alarm  bell  is 
sounded.  A  hostile  fleet  appears  on  Sunday  ofFthe 
harbor,  the  bells  are  rung,  what  has  the  citizen  to 
do?  He  has  to  go  armed  of  course,  because  the 
first  mentioned  law  was  given  to  maintain  peace  and 
safety;  the  second,  to  save  the  city.  The  repelling 
of  the  enemy,  and  the  freedom  of  the  city,  is  the 
most  important.  It  does  not  appear  to  me,  that  in 
this  case  the  citizen  ought  to  go  armed  on  Sunday, 
'  because  the  second  law  forms  an  exception  to  tlie 
first,'  or  if  it  does,  it  is  only  because  the  exception 
is  founded  upon  a  more  general  principle  ;  if  it  were 
not,  it  could  not  possibly  have  the  power  of  over- 
coming the  other  law,  which  prohibits  going  armed 
on  festival  days. 

If  the  exceptions  are  specified,  or  if  we  can  give 
to  a  text  the  character  of  an  exception  to  the  general, 
the  exception  of  course   prevails  as  we  have  stated, 

XVI.  In  order  to  give  the  proper  meaning  to 
each  word  or  sentence,  we  ought  to  consider  the 
whole  text  or  discourse  together ;  without  it,  we  ain 
never  arrive  at  a  fair  interpretation  or  construction. 


CHAPTER     V  . S  E  C  T  I  O  N     XVII.        143 

XVII.  Recapitulating  tlio  general  principles  of 
construction,  we  shall  find  the  following  to  be  most 
essential  points : 

1.  All  principles  of  interpretation,  if  at  all  appli- 
cable to  construction,  are  valid  for  the  latter. 

2.  The  main  guide  of  construction  is  analogy,  or 
rather  reasoning  by  parallelism. 

3.  The  aim  and  object  of  an  instrument,  law,  &;c., 
are  essential,  if  distinctly  known,  in  construing 
them. 

4.  So  also  may  be  the  causes  of  a  law. 

5.  No  text  imposing  obligations  is  understood  to 
demand  impossible  things. 

6.  Privileges,  or  favors,  are  to  be  construed  so  as 
lo  be  least  injurious  to  the  non-privileged  or  un- 
favored. 

7.  The  more  the  text  partakes  of  the  nature  of  a 
compact,  or  solemn  agreement,  the  closer  ought  to 
be  its  construction. 

8.  A  text  imposing  a  performance,  expresses  the 
minimum,  if  the  performance  is  a  sacrifice  to  the 
performer,  the  maximum,  if  it  involves  a  sacrifice  or 
sufferance  on  the  side  of  the  other  party. 

9.  The  construction  ought  to  harmonize  with  the 
substance  and  general  spirit  of  the  text. 


144  HERMENEUTIC  S. 

10.  The  effects,  which  would  resuU  from  one  or 
the  other  construction,  may  guide  us  in  deciding 
which  construction  we  ought  to  adopt. 

11.  The  older  a  law,  or  any  text  containing  reg- 
ulations of  our  actions,  though  given  long  ago,  the 
more  extensive  the  construction  must  be  in  certain 
cases. 

12.  Yet  nothing  contributes  more  to  the  substan- 
tial protection  of  individual  liberty,  than  a  habitually 
close  interpretation  and  construction. 

13.  It  is  important  to  ascertain,  whether  words 
were  used  in  a  definite,  absolute,  and  circumscribed 
meaning,  or  in  a  generic,  relative,  or  expansive 
character. 

14.  Let  the  weak  have  the  benefit  of  a  doubt, 
without  defeating  the  general  object  of  the  law. 
Let  merc}^  prevail  if  there  be  real  doubt. 

15.  A  consideration  of  the  entire  text  or  discourse 
is  necessary,  in  order  to  construe  fairly  and  faith- 
fully. 

16.  Above  all,  be  faidiful  in  all  construction. 
Construction  is  the  building  up  with  given  elements, 
not  the  forcins;  of  extraneous  matter  into  a  text. 


CHAPTER  VL 


Hermeneutic  Rules  respecting  Detached  spoken  Words  or  Sen- 
tences. —  Conversation.  —  Hearsay.  —  In  judicial  Procedures. 
Letters,  Journals,  Private  Notes. — Speeches.  —  Pamphlets. — 
Orders,  Directions,  &c.  of  a  passing  Nature.  —  Contracts, 
Deeds,  Wills,  &c.  —  Laws  must  at  times  be  interpreted  or 
construed.  —  Hermeneutic  Rules  respecting  Laws. — Consti- 
tutions.—  Constitutions  are  Laws  and  Guarantees.  —  Various 
Constitutions.  —  Rules  of  Constitutional  Hermeneutics. — The 
"S'eto  and  pardoning  Privilege.  —  Liternational  Treaties. 

I.  If  we  apply  these  general  rules  of  Interpreta- 
tion and  construction,  to  the  various  subjects,  which, 
in  politics  and  law,  may  form  the  text,  some  particu- 
lar rules  peculiar  to  these  respective  subjects,  or  of 
especial  importance  respecting  one  or  the  other  will 
be  found. 

II.  Detached  spoken  ivords  or  sentences,  not 
pronounced  on  solemn  occasions,  or  in  public. 
Merely  spoken  words  may  be  of  the  greatest  im- 
portance, for  instance,  in  criminal  cases.  Every 
thing  may  depend  upon  a  proper   understanding  of 

13 


146  HER  ME  NEU  TICS. 

some  words  uttered  by  a  person ;  or  they  may  pos- 
sess very  high  poHtical  importance:  for  instance,  the 
answer  which  queen  EUzabeth  gave,  when  asked 
whom  she  designated  as  the  fittest  person  to  suc- 
ceed her. 

The  more  the  discourse,  in  which  the  words  in 
question  were  uttered,  assumes  the  character  of  con- 
A'ersation,  the  less  importance  we  can  attach  to 
them ;  for,  to  understand  them  entirely,  we  ought  to 
know  the  accent,  the  gesture,  the  expression  of  the 
face,  which  accompanied  them,  or  the  whole  spirit 
of  the  conversation,  which  gave  rise  to  them.  This 
spirit  of  the  conversation,  or  the  expression  of  the 
features  during  the  vuterance,  may  indicate,  indeed, 
that  the  very  contrary,  by  way  of  jest  or  irony, 
was  meant  from  what  the  words  directly  would  inti- 
mate. The  accent  of  speech,  and  that  which  pre- 
vails as  the  general  idea  in  the  minds  of  the  utlerer 
and  hearer,  are  in  all  conversations  or  spoken  words, 
not  only  sufficient  substitutes  for  exactly  grammatical 
use  of  pronouns  and  relatives,  but  in  many  cases, 
better  and  clearer.  Written  words  allow  of  calm 
perusal  and  considerate  application  of  each  pronoun, 
to  its  proper  noun.  Wherever  tyranny  sends  out 
her  listening  informers,  it  will  be  found  that  many 
people  are  sentenced,  because  not  sufficient  or  no 
regard  is  paid  to  these  concomitants  of  all  conversa- 
tional intercourse. 


CHAPTER     VI. SECTION     11.  147 

All  these  accompaniments  of  oral  intercourse  are, 
however,  evanescent ;  the  words  alone  are  repeated, 
and  these  undergo  considerable  changes  with  each 
new  transmission.  The  frailty  of  tradition  shows 
itself  no  where  more  strongly  than  in  hear-say,  and 
reports  are  never  more  to  be  dreaded  than  when  re- 
lating to  subjects,  which  are  transmitted  in  secret. 
Woe  to  the  man  who  lends  his  ear  to  whispers  ! 
Woe  to  him  who  is  influenced  by,  what  is  common- 
ly called  talk,  be  this  ultimately  transmitted  orally, 
or  in  newspapers  or  memoirs.  We  may  lay  it  down, 
then,  as  a  rule,  to  discard  them  altogether,  unless 
they  have  reference  to  facts,  w^hich  facts  we  have  it 
in  our  power  to  ascertain  otherwise.  It  is  a  very 
simple  rule,  yet  daily  forgotten,  in  common  inter- 
course, in  newspaper  debates,  in  politics,  be  they  of 
a  popular  sort  or  relating  to  courts,  in  judicial  trials, 
and  in  the  study  of  history.  If  you  peruse  a  file  of 
papers,  issued  during  the  wars  between  England  and 
France  under  Napoleon,  you  wall  find  striking  and 
incredible  proofs  of  the  remark  just  made.  If  the 
above-mentioned  rule  were  strictly  adhered  to,  it 
would  give  a  death-blow,  at  once,  to  all  systems  of 
espionage. 

In  judging  by  hear-say,  people  are  always  too  apt 
to  break  two  necessary  and  obvious  rules  ;  the  one 
furnished  by  criticism,  the  other  by  common  moral-- 


148  HERMENEUTICS. 

ity.  The  first  has  been  mentioned  ah'eady,  namely, 
inquire  first  of  all,  whether  the  text  be  genuine. 
Were  the  words  really  uttered  ?  Were  they  uttered 
precisely  so  ?  Were  they  not  uttered  under  circum- 
stances which  made  them  convey  an  entirely  differ- 
ent meaning  from  what  they  seem  to  express  in  their 
detached  form,  as  reported  ?  The  second,  furnished 
by  common  morality,  is,  that  we  should  not  studi- 
ously endeavor  to  make  the  worst  of  the  w'ords  or 
actions  of  our  neighbors.  Plain  justice  demands 
that  w^e  should  take  them  in  the  spirit  in  which  they 
were  meant,  and  that  we  should  endeavor  to  find 
out  that  spirit ;  plain  charity  demands  that  we  should 
give  full  weight  to  a  possible  good  interpretation, 
which  charity  becomes  but  justice,  considering  that 
all  of  us  stand  in  equal  need  of  it.  Now,  read  the 
papers,  especially  if  any  question  of  vital  interest  is 
pending,  be  it  in  politics  or  religion,  or  whatever 
other  sphere,  and  it  w^ill  be  seen  whether  it  is  worth 
while  to  mention  two  rules,  which,  in  themselves 
seem  so  plain,  that  no  one  might  be  supposed  to 
dissent  from  them. 

In  judicial  procedures,  it  will  be  probably  found  a 
safe  rule  to  disregard  and  discard  at  once,  any  report 
of  words,  wiiich  may  involve  the  injury  of  any  one, 
and,  at  the  same  time,  require  interpretation  at  all. 
If,  however,  the   adoption  of  the  words  injures  one 


CHAPTER      VI. SECTION       II.  149 

party,  and  the  discarding,  another,  it  is  necessary,  of 
course,  to  proceed  in  good  faith  upon  all  the  sound 
rules  of  interpretation  and  construction.  This  is 
frequently  of  great  Importance  respecting  the  last 
declarations  of  persons  on  their  death-bed.  In  these 
cases,  good  faith  obliges  us,  not  to  found  any  argu- 
ment upon  the  nice  position  of  words,  or  the  pecu- 
liar reference  which  certain  pronouns  may  have ; 
because,  as  has  been  alluded  to  already,  even  in 
common  converse,  we  refer  pronouns  much  more  to 
the  logical  subject  of  the  sentence,  than  to  the 
grammatical,  because  the  former  is  uppermost  in  our 
mind.  Every  one  who  has  ever  written  for  the 
press,  will  have  found  that  he  has  to  change,  after  a 
careful  perusal  of  what  he  wrote  with  vivid  interest, 
these  pronouns,  which  in  the  original  draft  related  to 
the  general  subject,  rather  than  to  the  subject  of  the 
specific  sentence.  The  same  happens  with  the  sin- 
gular and  plural  number  of  nouns  and  verbs. 

There  is  a  remarkable  instance,  illustrating  this 
subject,  on  record,  in  the  trial  of  Earl  Strafford  for 
high  treason.  I  mean  the  deposition  of  Sir  Henry 
Vane  respecting  the  notes  which  his  father  had 
taken  of  a  debate  at  the  council-table  of  Charles  I, 
In  these,  Strafford  was  made  to  say,  among  other 
things  :  '  And  you,  (the  king)  have  an  army  in  Ire- 
land, that  you  may  employ  to  reduce  this  kingdom 
13* 


150  HERMENEUTICS. 

to  obedience  ;  for  I  am  confident  the  Scots  cannot 
hold  out  five  months  ; '  upon  which  the  question 
arose,  whether  Strafford  used  this,  that  or  their,  and 
whether  this  meant  England  or  Scotland.^ 

III.     Letters,  Journals,  private  Notes,  &,'C. 

This  is  not  the  place  to  discuss  the  outrage  of 
ihe  unauthorized  publishing  of  private  letters,  or  the 
crime  of  unauthorized  opening  them.  A  letter 
thief,  as  Luther  calls  every  one,  oflicer  or  not,  who 
breaks  the  seal  of  a  letter  not  addressed  to  him,  is 
as  bad,  and,  at  times,  worse,  than  a  common  thief, 
according  to  the  same  authority ;  and  Lord  Falk- 
land, even  in  those  troubled  times  in  which  he  lived, 
declared  the  opener  of  letters  to  be  the  worst  of 
spies.     Clarendon,  VL  235. 

The  unauthorised  opening  of  private  letters,  or 
perusing  notes  for  private  use  only,  is  a  most  im- 
snoral  act,  well  known  and  felt  by  every  '  letter 
thief;'  for,  who  will  boldly  and  without  blushing, 
acknowledge  it.  It  is  breaking  into  one  of  the  most 
sacred  sanctuaries  of  humanity.  Nearly  the  same 
rule  applies  to  the  unauthorized  publication  of  pri- 
vate letters,  even  though  they  may  have  been  direct- 
ed to  us.     Letters  do  not  become  absolutely  ours. 

(1)  See  State  Trials,  vol.  III.  p.  1442.  Brodie's  History  of 
the  British  Empire,  Edinb.  1822,  vol.  HI.  p.  91.  Also  Lingard, 
vol.  X.  chap.  II.  Lingard,  however,  is  not  important  as  to  this 
part  of  British  liistory. 


CHAPTER     VI. SECTION     III.       151 

that  is,  we  are  not  absolutely  free  to  dispose  of  their 
contents,  although  the  letters  be  directed  to  us. 
The  American  law  acknowledges  this ;  it  has  been 
decided,  that  the  law,  that  no  person  has  the  right 
of  publishing  any  thing  of  another  without  a  written 
order  or  permission  of  the  writer,  is  applicable  to 
letters ;  the  property  of  them  remains  in  the  letter- 
writer. 

Still,  letters  are  not  unfrequently  published,  some- 
times with,  sometimes  without,  the  consent  of  the 
author,  and  it  becomes,  not  unfrequently,  necessary 
for  the  citizen  to  form  his  opinion  upon  them.  In 
historical  and  political  memoirs,  letters  become 
equally   often   subjects   of  great  importance. 

The  only  safe  and  just  rule,  for  the  interpreta- 
tion and  construction  of  private  letters,  is,  that  we 
discard  every  thing  which  is  not  a  bare  statement  of 
fact,  or  carries  along  with  it  irresistible  evidence  of 
truth.  Even  the  statement  of  facts  ought  to  be 
given,  so  as  not  to  require  any  completion  on  the 
side  of  the  receiver  of  the  letter,  and  which  the 
letter-writer  knew  would  be  added  by  the  person  ad- 
dressed during  the  perusal.  As  to  every  thing  else, 
the  language  of  a  private  letter  is  so  entirely  found- 
ed upon  the  relation  between  its  writer  and  the  re- 
ceiver, their  acquaintance  with  each  other's  charac- 
ter, use  of  words,  nay,  sometimes  with  the  very  ac- 


152  HERMENEUTICS. 

cent  with  which  the  writer  is  in  the  habit  ol"  pro- 
nouncing certain  sentiments  or  words,  and  upon  a 
knowledge  of  so  many  details,  which,  though  un- 
mentioned,  serve  to  give  the  right  meaning  to  the 
W'Ords,  that  a  letter,  destined  to  remain  private,  fre- 
quently changes  its  whole  character  as  soon  as  it  is 
made  public,  and  a  third  person  attempts  to  interpret 
whatever  can  be  doubtful  or  ambiguous.  The  rela- 
tion between  two  persons  forms  a  key  to  their  cor- 
respondence, for  which  nothing  else  can  be  substi- 
tuted. There  is  a  private  usus  loqulndi  betw^een 
friends,  husband  and  wife,  members  of  a  family,  &c., 
which  cannot  be  known  by  others. 

May  it  be  repeated  once  more,  for,  unfortunately, 
it  is  but  too  important,  that  we  ought  to  be  fairly 
convinced  of  the  genuineness  of  the  letter  in  ques- 
tion. We  cannot  be  too  careful,  in  times  of  great 
excitement,  to  act  upon  this  principle  ;  for  forged 
letters  will  often  be  given  to  the  public,  and  though 
the  forger  is  sure  that  the  forgery  must  be  discover- 
ed, he  perhaps  calculates  only  upon  the  next  effect, 
and  does  not  care  whether  the  forgery  becomes 
known  at  a  later  period  or  not. 

The  rules  of  epistolary  hermeneutics  apply  still 
more  forcibly  to  private  journals.  A  journal  con- 
sists of  a  series  of  memoranda  addressed  to  one's 
self,  and  it  is  impossible  for  any  other  person  to  dis- 


CHAPTER      VI  . S  E  C  T  I  O  N      III.         1  53 

cover  the  precise  meaning  of  any  ambiguous  ex- 
pression. A  private  journal  withdraws  itself  entire- 
ly from  the  common  rules  of  criticism  and  interpre- 
tation. Sometimes  from  the  very  rules  of  logic,  for 
a  thousand  different  and  indiscoverable  motives  may 
have  prompted  the  writer  to  have  expressed  himself, 
and  not  otherwise.  The  words  themselves  receive, 
not  unfrequently,  a  different  meaning,  which  is  well 
understood,  because  the  writer  addressed  them  to 
himself,  but  not  by  others. 

These  remarks  acquire  still  greater  importance, 
whenever  letters  and  journals  are  admitted  as  evi- 
dence in  legal  transactions.  Private  journals  and 
memoranda,  or  any  writing,  if  they  have  never  been 
communicated  to  any  one,  are  now  justly  excluded 
in  most  countries  from  the  courts  of  justice.  It  was 
not  always  the  case,  as  is  well  known,  for  instance, 
from  the  trial  of  Algernon  Sidney.  No  one,  who 
has  not  himself  undergone  trials,  founded  upon  let- 
ters, memoranda,  and  journals,  and  been  called  upon 
to  explain  doubtful  or  suspicious  passages,  can  pos- 
sibly form  an  idea  of  the  difficulty,  not  only  for  any 
stranger  to  arrive  at  their  true  sense,  but  for  the 
writer  himself  to  place  others  in  that  precise  point 
of  view,  from  which  the  various  pieces  of  this 
species  of  writing  can  be  rightly  understood. 


154  H  E  R  M  E  N  E  U  T  I  C  S  . 

The  same  may  be  said  of  any  manuscript  remarks 
found  in  the  possession  of  a  person,  before  they 
have  been  communicated  to  others.  Those  wh.o 
are  not  in  the  habit  of  noting  down  their  thoughts, 
which  some  occurrences  of  the  day  may  have  sug- 
gested, do  not  knoW'  that  such  ideas  may  be  written 
down  with  a  positiveness,  in  which  the  writer  is  far 
from  desiring  to  communicate  them  to  others,  or  he 
may  have  set  tliem  down,  such  as  the  opponent 
might  use  against  him,  without  giving  his  sanction  to 
the  whole,  or  even  to  any  part  of  it.  As  to  a  legal 
point  of  view,  that  which  has  never  left  my  desk 
has  never  left  my  breast ;  remarks,  before  being 
communicated  to  any  one,  are,  though  written,  le- 
gally, but  thoughts.  Such,  at  least,  is  the  honest 
principle  which  ought  to  be  adopted  every  where. 
If  they  are  notes  of  facts,  they  may  of  course  serve 
to  bring  out  the  truth,  like  any  thing  else,  which 
may  serve  to  shed  light  on  an  important  point ;  so 
far  as  it  goe's, 

IV.  Speeches.  Speeches  can  be  correctly  in- 
terpreted or  construed,  only,  if  Ave  pay  attention  to 
the  following  points. 

1 .  To  all  the  circumstances  under  which  they 
were  delivered  ;   and,  among  these  again,  we  ought 


CHAPTER     VI  . S  E  C  T  I  O  N     IV,  155 

to  weigh  well  the  general  character  of  the  meeting, 
the  capacity  of  those  to  whom  the  speech  was  ad- 
dressed, their  number,  whether  they  were  constitu- 
ents, fellow  representatives,  or  other  citizens,  which 
gives  a  very  different  character  to  a  speech  ;  and  iu 
what  situation  the  speaker  uttered  it. 

2.  Whether  it  bears  the  character  of  having  been 
prepared  before-hand,  or  of  being  the  sudden  effu- 
sion of  the  moment ;  whether  the  utterer  charges,  or 
has  been  charged,  provokes,  or  has  been  provoked. 

3.  To  the  fact  that  in  general,  a  speaker  has  to 
use  more  impressive  and  emphatic  language  than  a 
writer,  because  he  has  to  attract  and  rivet  attention, 
w-hile  the  reader  does  not  take  up  a  book  unless  he 
is  disposed  to  direct  his  attention  to  the  work,  and 
because  a  reader  can  weigh  at  leisure  the  arguments 
and  position  of  the  author ;  the  hearer  of  a  speech 
cannot  do  this  so  conveniently  ;  the  word  of  mouth 
is  fleet. 

4.  Due  deduction  is  to  be  made  on  account  of  the 
excitement  of  the  moment. 

•5.  We  must  seek  in  the  whole  life  and  experience 
of  the  speaker,  for  a  key  to  what  he  declares  in  the 
speech,  by  way  of  principle  or  expediency.  ]Men 
will  sometimes  make  statements,  which,  separated 
from  their  connexion,  may  liave  a  very  alarming  aj)- 
pearance,  and  yet  the  whole  life  of  him  who  uttered 


156  II  E  R  M  E  N  E  U  T  I  C  S  . 

them  may  convince  us,  that  the  meaning  of  what  he 
said  cannot  he  such  as  it  appears.  We  are  bound, 
in  such  cases,  to  allow  due  weight  to  a  man's  life, 
and  to  construe  his  words  accordingly  ;  until  facts 
prove  that  a  change  has  actually  taken  place  in  the 
sentiments  of  the  individual. 

6.  We  must  inquire  whether  the  speech  assumes 
nmre,  or  less,  the  character  of  special  pleading. 
Burke's  and  Sheridan's  speeches,  during  the  trial  of 
Hastings,  would  form  very  doubtful  foundations  for 
historical  inquiries,  without  due  regard  being  paid  to 
this  rule. 

These  rules  are  simple,  and,  indeed,  would  not 
recommend  themselves,  were  they  not  chiefly  found- 
ed upon  good  faith  and  common  sense ;  yet  are 
they  daily  disregarded,  not  only  in  the  heat  of  party 
strife,  but  by  the  historian.  How  frequently  are 
speeches  quoted  for  or  against  a  point,  which  would 
lose  all  weight,  or,  perhaps,  have  an  effect  opposite 
to  the  intended  one,  were  these  simple  rules  prop- 
erly attended  to.  The  same  applies  to  historic  an- 
ecdotes, often  repeated  for  centuries,  and  yet  of  no 
value,  if  duly  criticised. 

In  regard  to  the  application  of  the  first  principle 
of  criticism  to-  speeches,  namely :  convince  your- 
self of  the  genuineness  of  the  text,  it  is  necessary 
to  remark,  that  neither  professional   reporters,  nor. 


t     H  A  P  T  E  R     V  1  . S  E  C  T  1  O  N     V  .  1  57 

always,  our  own  ears  are  sufficient  guarantees  for  the 
genuineness  of  the  text.  We  may  misunderstand 
the  utterer,  especially  in  the  noise  of  public  assem- 
blies, and  an  opportunity  of  fair  explanation  should 
not  only  be  granted,  but,  if  it  depends  upon  us, 
should  be  offered. 

Remarkable  instances  of  the  interpretation  or 
construction  of  speeches  have  taken  place  in  legis- 
lative assemblies,  when  they  have  become  the  sub- 
ject of  parliamentary  inquiry.  Mr.  Manuel  was 
expelled  from  the  French  chamber  of  deputies,  in 
February,  1823,  in  consequence  of  an  unfavorable 
construction  put  upon  an  unfinished  sentence  of  his 
own.  Our  newspapers,  political  and  religious,  fur- 
nish but  too  frequent  instances. 

That  pamphlets,  written  in  times  of  great  excite- 
ment, are  to  be  interpreted  and  construed  at  the 
time,  as  well  as  by  the  later  historian,  with  all  the 
care  which  speeches  require,  would  not  be  necessary 
to  mention  here,  were  they  not  so  frequently  used 
in  a  different  way. 

V.  Orders  and  directions  of  a  passing  nature,  in 
the  army,  navy,  executive  departments,  or  wherever 
they  may  be  given,  are  not  unfrequently  penned  in 
a  manner,  which  admits  of  and  demands  interpreta- 
tion and  construction.  They  are  always  to  be 
14 


1  58  H  E  R  M  E  N  E  U  T  I  C  S  . 

understood  with  reference  to  the  known  and  general 
object  of  the  utterer.  In  drawing  them  up,  the 
well-known  points  are  omitted  ;  because  the  text  is 
not  to  become  the  general  rule  of  the  actions  of 
many  or  of  successive  generations  as  a  law.  Inter- 
pretation and  construction  must,  in  these  cases,  go 
as  far  as  common  sense  dictates,  at  the  responsibility 
and  peril  of  the  receiver  of  the  order.  The  more 
implicit  the  order,  therefore,  is  intended  to  be,  the 
more  clearly  it  ought  to  be  worded,  yet  its  subject, 
or  the  time  at  which  it  is  given,  is  frequently  of  a 
character  which  excludes  any  extensive  writing. 
The  orders,  w^iich  Napoleon  gave  to  his  chief  com- 
manders on  the  eve  of  battle,  are  considered  by 
military  men  as  models  of  brevity  and  perspicuity  ; 
and  yet  they  make  that  allowance  for  free  action, 
which  is  so  indispensable  for  those,  who  have  to 
execute  charges  of  the  highest  responsibility.  1 
have  been  told  that  the  first  order  which  General 
Scharnhorst  issued,  in  order  to  arm  all  Prussia,  in 
the  year  1813,  was  in  ,so  small  a  compass,  that  his 
aids  could  write  it  on  a  small  parchment  tablet.  It 
is  evident  that  nothing  essential  could  have  been 
done,  had  not  those  who  received  this  momentous 
order  construed  it  in  the  broadest  manner,  especially 
when  we  consider  that  this  very  order  was  issued  at 
a  lime,  when  a  fearful  enemy  was  yet  in   possession 


CHAPTER     VI  . S  EOT  ION     VI.  159 

of  a  great  part   of  that  country,  which  was  to  rise 
against  him  within  a  short  time. 

It  may  be  adopted  as  a  rule,  that  the  greater  a 
man,  placed  in  high  spheres  of  action,  the  more 
distinctly  he  will  give  indeed  the  few  essential  points, 
upon  which  mainly  some  great  action  depends,  but 
the  less  inclined  he  will  also  be  found  to  fetter  his 
agents  by  pedantic  minutae.  See  Wellington's  Dis- 
patches. If  so,  however,  these  few  great  points 
require  proper  construction,  extensive,  comprehen- 
sive construction.  So  do  we  likewise  find  the 
dispatches  of  great  statesmen  to  agents  who  are 
treating  of  a  peace.  The  main  points  will  be  given, 
the  minor  are  left  to  proper  construction,  and  it  will 
be  always  found,  that  if  a  plenipotentiary  acts  under 
such  a  minister,  against  an  agent  of  a  pedantic  states- 
man, the  former  will  invariably  get  the  better  of 
him. 

VI.  Contracts,  Deeds,  Wilis,  &fc.  Their  con- 
struction forms  a  most  important  subject  of  law  ;  but 
the  rules  relating  to  them  and  to  the  positive  law  of 
every  country,  ought  to  be  given  connectedly,  in 
order  to  be  properly  understood.  They  belong  to 
the  proper  province  of  law.  Whenever  the  private 
citizen  has  officially  to  decide  upon  these  subjects, 
it  is  the  duty  of  the  judge   to  charge  him  in  a  per- 


160  HERMKNEUTICS. 

spiciious  manner,  according  to  bis  capacity.  He  is 
often,  however,  called  upon  to  form  an  opinion,  es- 
pecially upon  contracts,  and  other  deeds,  as  a  private 
individual,  and  for  this  purpose  it  is  desirable,  that  a 
jurist  of  high  eminence  should  draw  up  a  popular 
work  on  the  construction  of  contracts,  deeds,  and 
wills.  A  work  of  this  sort  would  be  of  great  ad- 
vantage to  the  community   at  large. 

I  must  refer  the  reader  for  information  upon  legal 
instruments,  emanating  from  private  individuals,  or 
establishing  certain  legal  relations  between  them,  to 
2  Blackstone,  379,  and  sequel,  and  the  various  pla- 
ces where  the  commentatoi'  speaks  of  wnlls ;  and 
Kent's  Comment.  II.  552,  IV.  344,  345.  In  tJie 
former  place  (Kent,  II.  552)  the  student  will  find 
several  other  works  referred  to,  especially  lord  Ba- 
con's De  Augmentis  Scicniiarum,  by  a  thoughtful 
perusal  of  which,  the  student  will  do  himself  a  great 
service. 

Wherever  a  ^reat  mind,  or  many  of  the  most 
prominent  men  of  a  nation  jointly,  have  endeavored 
to  express  the  essence  of  laws  after  mature  reflec- 
tion, we  are  bound  to  their  attentive  study,  because 
their  object  has  been  carefully  to  separate  that  which 
is  accidental,  or  transient,  from  the  essential  or  en- 
during. In  this  respect,  it  will  be  always  useful  to 
inquire  into  the  codes   of  those   nations,  who  have 


CHAPTER     VI. S  ECTION     VI.  l6l 

codified  their  various  laws,  and  who  acknowledge 
the  same  fundamental  views  of  civilization  with 
ourselves.  Their  codes  are  not  the  capricious  inven- 
tions of  the  closet,  but  contain  the  essential  principles, 
which  were  scattered  in  their  accumulated  laws, 
anterior  to  the  codification,  now  embodied  into  one 
systematic  whole.  We  need  not,  indeed,  adopt  on 
this  account  the  various  provisions  of  these  codes  ; 
they  may  be  in  some  cases  repugnant  to  the  princi- 
ples of  our  civil  institutions ;  but  they  will  always 
furnish  us  with  ample  matter  for  fruitful  reflection, 
and  not  unfrequently  lead  us  to  wiser  opinions,  or 
strengthen  us  the  more  firmly  in  our  own.  It  goes 
far  to  prove  the  truth  of  a  principle,  at  which  we 
have  arrived,  if  we  find  that  it  has  likewise  been  laid 
down,  after  patient  deliberation  and  careful  inquiry 
into  the  experience  of  centuries,  by  a  nation  discon- 
nected from  our  own,  and  grown  up  under  different 
institutions.  In  some  cases,  the  evidence  even  be- 
comes the  stronger  with  the  greater  difference  of  the 
two  nations,  provided  always  we  can  show  that  the 
law  or  principle  was  not  laid  down  by  the  foreign 
nation,  for  some  sinister  purpose,  or  starting  from 
principles  entirely  at  variance  with  those  which  we 
acknowledge   in   corresponding  cases.     This,  hovv- 


1 62  H  E  R  ?I  E  N  E  U  T  I  C  S  . 

ever,  belongs  more  properly   to   the   subject  of  au- 
thorities, and  more  will  be  said  on  it  farther  below. ^ 

VII.  Laws.  It  has  been  shown  that  it  is  im- 
possible to  word  laws  in  such  a  manner  as  to  abso- 
lutely exclude  all  doubt,  or  to  allow  us  to  dispense 
with  construction,  even  if  they  were  worded  with 
absolute  (mathematical)  distinctness,  for  the  time, 
for  which  they  were  made  ;  because  things  and  re- 


(1)  Prussian  Code,  Part  I.  Tit.  IV.  Go,  and  scq.  as  to  Wills. 
Part  I.  Tit.  XII.  519,  and  scq.  Part  I.  Tit.  V.  2.52,  and  seq.,  and 
Part  II.  Tit.  VIII.  2109,  and  seq.  French  Civil  Code,  1156, 
1164,  as  to  Wills,  967,  1035.  Austrian  Code,  the  whole  17th 
Book  of  Part  II.  treats  of  Contracts  ;  the  whole  of  the  9th  Book 
of  Part  II.  of  Wills.  The  digest  under  the  proper  heads,  and, 
with  regard  to  Construction,  L.50,  Tit.  XVII.  de  diversis  regu- 
lis  juris  antiqui,  which  will  amply  repay  serious  and  comprehen- 
sive reflection,  legant  cos  (tltutos)  studiosi  juris,  ac  relegant, 
mcque  sponsore  credant,  nunquam  fore,  ut  eos  impcnsa  opera 
panitcat.  Heineecii  Elcmenta  Juris  Citilis,  ed.  quinta,  torn. 
II.  350. 

The  Grounds  and  Maxims  of  the  English  Law,  by  William 
Noy,  attorney  general,  in  the  reign  of  Charles  I.,  is  a  book  which 
ouffht  to  be  mentioned  here.  The  student  ouglit  not  to  remain 
unacquainted  with  it,  because  it  has  some  valuable  parts,  and 
continues  to  maintain  a  respectable  place  among  the  English 
law  books — a  fact  which,  will  always  lend  liistorical  interest  to 
it  at  any  future  period.  Yet  there  is  a  great  lack  of  comprehen- 
siveness of  mind,  and  philosophical  penetration,  in  this  work. 
It  would  be  a  matter  of  serious  regret,  indeed,  had  science,  by 
this  time,  not  far  advanced  beyond  the  sphere  of  No^^'s  book, 
and  though  law,  a.s  well  as  practical  life,  have  improved  and  thus 
mended  its  deficiencies,  it  is  to  be  lamented  that  no  work  has 
been  produced  long  ago.  able  to  render  Noy  comparatively  use- 
less. The  subsequent  editions  of  this  book  can  by  no  means  be 
considered  as  having  changed  the  character  of  the  work.  1 
would,  likewise,  reference  more  to  Vattel's  chapter  on  Interpre- 
tation; respecting  contracts,  to  Story's  Commentaries  on  the 
Conflict  of  Laws,  p.  225,  232. 


C  H  A  P  T  E  R     V  I  . S  EC  T  ION      VII.         163 

lations  change,  and  because  different  interests  con- 
riict  with  each  other.  The  very  object  of  general 
laws  is  to  establish  general  rules  before-hand  ;  for  if 
we  would  attempt  to  settle  each  case,  according  to 
the  views,  which,  with  the  momentary  interest,  it 
might  itself  suggest,  we  should  establish  at  once  the 
most  insufferable  tyranny  or  anarchy.  This  inherent 
generality,  however,  is  likewise  the  reason,  why  the 
application  of  laws  requires  construction,  since  most 
cases  occurring  are  of  a  complex  character.  It  is 
in  vain,  therefore,  to  believe  in  the  possibility  of 
forming  a  code  of  laws  absolutely  distinct,  like  math- 
ematical theories.  All  that  true  wisdom  requires  is 
to  make  laws  as  distinct  and  perfect  as  possible,  fol- 
lowing both  the  dictates  of  reason  and  the  sugges- 
tions of  experience,  and  carefully  to  establish  rules 
of  interpretation  and  construction,  or  legal  hermen- 
eutics. 

As  it  has  been  so  often  asserted,  and  to  this  day 
continues  to  be  asserted  by  some  persons,  that  laws 
ought  to  be  so  clear  that  interpretation  or  construc- 
tion can,  and,  therefore,  ought  to  be  abandoned,  I 
feel  obliged  briefly  to  enumerate  the  causes,  why 
this  is  impossible  ;  in  doing  which,  I  shall  be  par- 
doned if  I  touch  upon  a  few  subjects,  which  have 
been  treated  already  at  length,  in  order  to  be  the 
clearer  on  this  very   important  subject.     Yet  I  also 


1  64  H  E  R  M  E  N  E  U  T  1  C  S  . 

declare  my  settled  conviction,  that  the  clearest  pos- 
sible laws  are  an  incalculable  blessing  to  a  commu- 
nity, extending  much  farther  than  merely  to  the 
avoiding  of  unnecessary  litigation  ;  whilst  obscure 
or  unnecessarily  intricate  laws  are  a  very  curse  to  a 
nation,  and  serve  to  unite  the  lawyers  into  a  com- 
pact, formidable  and  privileged  class,  to  be  compared 
only  to  the  priesthood  of  some  nations,  ruling  the 
uninitiated.  I  allude  to  a  state  of  things  such  as 
exists  in  the  Spanish  colonies,  or  in  the  kingdom  of 
Naples,  or  in  some  branches  of  the  British  law. 

There  is  a  law  in  the  Chinese  Penal  Code,  as 
translated  by  Sir  George  Staunton — a  work  which 
has  many  praiseworthy  traits — that  may  fairly  be 
considered  as  a  model  of  ambiguous  laws,  to  which 
all  others  approach,  more  or  less.  The  Chinese 
Code  says,  '  Whoever  is  guilty  o{  improper  conduct, 
and  such  as  is  contrary  to  the  spirit  of  the  laws, 
though  not  a  breach  of  any  specific  article,  shall  be 
punished  at  the  least  with  forty  blows ;  and  when 
the  impropriety  is  of  a  serious  nature,  with  eighty 
blows. '^     This  is  a  law   clearly  emanating   from  the 


(1)  It  may  be  observed  here,  that  the  blows  in  the  Chinese 
Code,  are  frequently  mentioned  as  the  expression  of  yalue,  as  it 
were.  A  fine  of  so  much  is  substituted  for  a  certain  numljer  of 
blows.  They  are  the  pound  sterling  of  penal  valuation.  How- 
ever, the  compounding  ceases  with  the  lowest  classes,  where 
real  pounding  takes  place. 


'J  H  A  !•  T  K  R     V  I  . S  E  C  T  I  O  X     VII.  165 

Spirit  which  pervades  the  whole  Chinese  empire, 
that  the  emperor  is  the  father,  the  whole  country 
but  a  flimily — a  principle  which  necessarily  always 
leads  to  absolutism  and  tyranny,  the  moment  we  go 
beyond  the  family,  in  which  affection  is  the  base, 
and  not  right ;  while  personal  affection  cannot  form 
a  fundamental  principle,  where  personal  connexion 
ceases,  and  government  acts  by  delegation,  as  I  have 
endeavored  to  show  ere  this.^  This  ambiguous  and 
dangerous  law  would  be,  in  its  s])irit,  not  as  to  the 
blows,  a  perfectly  proper  family  rule. 

Interpretation  and  construction  of  laws,  then,  be- 
come, or  may  become,  necessary  : 

On  account  of  the  character  of  human  language, 
as  has  been  shown. 

On  account  of  their  ambiguity,  either  arising  from 
a  want  of  acquaintance  with  the  subject  legislated 
upon,  on  the  part  of  the  legislator,  or  from  contra-^ 
dictions  in  the  law  itself. 

On  account  of  their  application  to  complex  cases. 

On  account  of  the  change  of  circumstances  and 
things  to  which  they  must  be  applied,  or  of  the  spirit 
of  those  by  whom  they  are  applied,  as  was  the  case 
with  many  English  penal  laws  until  very  late^  which 
the  jurors  would  not,  and  could  not  apply  without 
ample  construction. 

(1)  Political  Ethics. 


1  66  H  £  R  M  E  N  E  U  T  I  C  S  , 

On  account  of  their  militating,  if  applied  to  cer- 
tain cases,  or  in  certain  parts,  with  more  general  and 
binding  rules  :  whether  these  latter  be  constitutional, 
written  and  solemnly  acknowledged  rules,  or  moral 
ones,  written  in  the  heart  of  every  man. 

VIII.  What  has  been  said  respecting  all  the 
specific  rules  applicable  to  contracts,  &ic.,  holds, 
likewise,  in  regard  to  laws.  They  cannot  possibly 
',\]\  be  given  here  ;  but  the  most  general  rules  and 
principles  find  here  a  proper  place,  and  that  the 
reader  may  have  an  easy  survey  of  them,  a  few 
W'hich  have  been  given  already  as  rules,  are  applica- 
ble to  all  interpretation,  are  briefly  repeated  here. 

The  student  is  referred,  for  a  further  pursuit  of 
ihis  study,  to  the  12th  chapter  of  the  5th  Book  of 
Pufendorf's  Law  of  Nature  and  Nations,  as,  like- 
wise, the  17th  Title  of  the  50th  Book  of  the  Digest, 
which  we  have  cited  in  the  previous  paragraph. 
The  principles,  there  laid  down  by  the  ancient  civil- 
ians, as  well  as  the  whole  code,  have  materially 
influenced  the  common  law  of  England.  See  Kent's 
Comment.  Lect.  XXXIX.  12.  See,  also,  Grotius 
de  Jure  Belli  et  Pacis,  Lib.  II.  Cap.  XVI.  de  In- 
terpretatione.^ 

(1)  I  would  refer,  likewise,  to  the  works  and  places  mentioneQ 
in  the  previous  section  ;  also,  to  the  article  on  the  Interpretation 
of  Law,  in  the  London  Law  IMagazine,  No.  36,  &c. 


C   H  AFTER     VI  . S  K  C  T  I  O  H      VIII,      1  ()7 

The  following  are  the  most  general  rules  : 

1.  The  true  meaning  of  words  can  be  but  one. 

2.  Honest,  faithful,  bond  fide  interpretation  is  all 
important ;  common  sense  must  guide  us. 

3.  Words  are  to  be  taken  according  to  their  cus- 
tomary, not  in  their  original  or  classical,  signification. 

4.  The  signification  of  a  word,  or  the  meaning  of 
a  sentence,  when  dubious,  is  to  be  gathered  from  the 
context,  or  discovered  by  analogy,  or  fair  induction. 
Yet  the  same  word  does  not  always  mean  the  same, 
in  the  same  discourse  or  text.  This  would,  in  fact, 
militate  with  the  important  rule,  that  we  are  to  take 
words  in  their  natural  sense,  according  to  custom  and 
their  connexion. 

5.  Words  are  always  understood  as  having  regard 
to  the  subject-matter. 

{).  The  causes  which  led  to  the  enactment  of  a 
law  are  guides  to  us.  If  one  interpretation  would 
lead  to  absurdity,  the  other  not,  we  must  adqpt  the 
latter.  So,  that  interpretation  which  leads  to  the 
more  complete  effect,  which  the  legislator  had  in 
view,  is  preferable  to  another. 

For  the  above  rules  see  Blackstone  and  Pufen- 
dorf.     As  to  rule  6,  see  Dig.  L.  50,  Tit.  17,  67. 

7.  Two  chief  objects  of  all  government  are 
peace  and  security  ;  the  state  can  never  be  under- 
stood to  will  any  thing  immoral,  so  long  as  there  i,s 


168  11  E  R  M  E  N  E  U  T  I  C  S  . 

any  doiibl.  Laws  cannot,  therefore,  be  construed 
as  meaning  any  thing  against  the  one  or  the  other. 
Security  and  morahty  are  the  supreme  law  of  every 
land,  whether  this  be  expressly  acknowledged  or 
not. 

8.  The  general  and  superior  prevails  over  the 
specific  and  inferior ;  no  law,  therefore,  can  be  con- 
strued counter  to  the  fundamental  law.  If  it  admits 
of  another  construction,  this  must  be  adopted. 

Lord  Coke  was  for  holding  laws  void  that  were 
contrary  to  reason.  Chancellor  Kent  says.  Com- 
ment, in.  448  :  'But  while  we  admit  this  conclu- 
sion of  the  English  law"  (namely,  that  the  will  of  the 
British  legislature  is  the  supreme  law  of  the  land, 
and  demands  perfect  obedience,)  we  cannot  but  ad- 
mire the  intrepedity  and  powerful  sense  of  justice 
which  led  lord  Coke,  when  chief  justice  of  the  K. 
B.,  to  declare  as  he  did  in  Doctor  Bonham's  case, 
that  the  common  law  doth  control  acts  of  parlia- 
ment, and  adjudges  them  void  when  against  common 
right  and  reason.  The  same  sense  of  justice  and 
freedom  of  opinion,  led  lord  chief  justice  Hobart,  in 
Day  V.  Savage,  to  insist,  that  an  act  of  parliament 
made  against  natural  equity,  as  to  make  a  man  judge 
in  his  own  case,  was  void  ;  and  induced  lord  chief 
justice  Holt  to  say,  in  the  case  of  the  city  of  London 
v.  Wood,  that  the  observation  of  lord  Coke  was  not 


CHAPTER     VI. SECTION     VIII.        169 

extravagant,  but  was  a  very  reasonable  and  true 
saying.  Perhaps  what  lord  Coke  said  in  his  reports, 
on  this  point,  may  have  been  one  of  the  many  things 
that  King  James  alluded  to,  when  he  said,  that  in 
Coke's  Reports  there  were  many  dangerous  conceits 
of  his  own,  uttered  for  law,  to  the  prejudice  of  the 
crown,  parliament,  and  subjects.'  No  doubt,  they 
are  dangerous  to  the  pretensions  of  a  king  whose 
arrogance  was  equalled  by  his  want  of  judgment, 
courage,  honesty  and  decency. 

Our  courts  have  repeatedly  declared  laws  void  as 
being  against  the  constitution.  For  the  various 
American  cases,  confirming  this  necessary  doctrine 
in  all  countries,  in  which  there  is  a  constitution,  see 
Kent's  Comment,  sect.  XX.,  where  the  commenta- 
tor speaks  in  just  terms  of  that  beautiful  argument 
delivered  on  this  vital  question,  by  chief  justice 
Marshall,  in  the  celebrated  case  of  Marbury  v.  Mad- 
ison (1  Cranch,  137,) — an  opinion  which  is  of  the 
utmost  importance  in  the  constitutional  history  of 
mankind. 

9.  A  law,  contrary  to  the  fundamental  or  primary 
law,  may  at  any  time  be  declared  so,  though  it  has 
already  been  acted  upon  ;  for  '  that  which  was  wrong 
in  the  beginning  cannot  become  valid  in  the  course 
of  time.'  Dig.  L.  50,  Tit.  17,  24,  and 
15 


1 70  H  E  R  M  E  N  E  U  T  I  C  S  . 

'  Quod  ab  initio  non  valet,  in  tractu  temporis  non 
convalescit.' 

This  does  not  militate  with  the  other  maxim  given 
by  Noy  that,  '  Communis  error  facit  jus.'  This  is 
true  so  long  as  '  the  communis  error '  is  not  acknowl- 
edged as  such,  and  if  we  do  not  understand  by  jus 
an  immutable  thing,  which,  therefore,  on  proper 
grounds  may  be  declared  to  be  non-jus.  Else, 
should  it  have  remained  forever /ms  to  burn  witches  ? 
Common,  assuredly,  the  error  was,  for  it  has  been 
computed,  that  in  the  whole  nine  millions  five  hun- 
dred thousand  beings  were  sacrificed  as  witches  or 
wizzards,  not  to  mention  the  countless  victims  of  the 
most  barbarous  torments.^ 

10.  If,  therefore,  the  law  admits  of  two  interpre- 
tations, that  is  to  be  adopted,  which  is  agreeable  to 
the  fundamental  or  primary  law,  though  the  other 
may  have  been  adopted  previously. 

11.  Custom  of  the  country,  where  the  law  was 
made,  supplies  the  deficiency  of  words. 

12.  In  dubious  cases,  the  fairer  interpretation  is 
to  be  adopted.  '  Every  where,  especially  in  law, 
equity  is  to  be  considered.'  Dig.  L.  50,  Tit.  17, 
90,  192,  200. 

(1)  The  Revelation  of  God,  &c.  by  Henry  Stephani,  DD. 
1835,  (in  German)  1  vol.  page  194.  Dr.  Stephani  computes,  of 
course,  the  number  of  the  victims  of  witch  trials  in  christian 
countries  only. 


CHAPTER     VI. SECTION     VIII.        171 

13.  That  which  is  probable,  or  customary,  is 
preferable  to  that  which  is  less  so,  wherever  obscu-. 
rity  exists. 

14.  If  two  laws  conflict  with  each  other,  that 
must  yield,  the  effect  of  which  is  less  important ; 
or  that  is  to  be  adopted,  by  the  adoption  of  which, 
we  approach  nearest  to  the  probable  or  general  in- 
tention of  the  legislator.  Specific  rules,  adopted 
for  the  protection  of  private  individuals,  must  be 
followed. 

Whether  the  laws  were  made  by  the  same  legis- 
lator, or  body  of  legislators,  or  not,  does  not  alter 
the  case.  For  the  legislative  power  in  a  state  is 
continuous,  aiming,  or  supposed  to  aim,  at  the  public 
welfare.^ 

15.  The  more  general  the  character  of  the  law 
is,  the  more  we  ought  to  try  strictly  to  adhere  to  the 
precise  expression.  Without  it,  it  would  be  a  wa- 
vering, instead  of  a  stable  rule,  and  we  must  pre- 
sume that  the  words  have  been  the  better  weighed. 
Many  considerations,  however,  may  exist,  which 
would  oblige  us  to  follow  a  different  course,  e.  g. 
the  cruelty  of  a  law,  its  antiquity,  and  consequent 
unfitness. 


(1)  See  Puffendorf 's  instance  of  two  men  arriving  at  the  same 
time  at  the  gaol,  or  the  conflicting  laws  with  regard  to  a  woman 
who  had  deserved  a  statue. 


172  HERMENEUTICS. 

16.  If  any  doubt  exists  in  penal  laws,  or  rules,, 
they  ought  to  be  construed  in  favor  of  the  accused ; 
of  course,  without  injury  to  any  one  else. 

17.  In  cases  of  doubt  between  the  authority  and 
an  individual,  the  benefit  of  the  doubt,  all  other 
reasons  being  equal,  ought  to  be  given  to  the  indi- 
vidual, not  to  the  authority  ;  for  the  state  makes  the 
laws,  and  the  authority  has  the  power ;  yet  it  is 
subversive  of  all  good  government,  peace,  and  civil 
morality,  if  subtlety  is  allowed  to  defeat  the  wise 
object  of  the  law,  or  if  a  morbid  partiality  for  an 
evil-doer  guides  the  interpreter. 

18.  The  weak  (hence  the  individual  arraigned  by 
the  state)  ought  to  have  the  benefit  of  doubt ;  doubt 
ought  to  be  construed  in  mercy,  not  in  severity ;  a 
law  may   be  rendered  milder,  but  not  more  severe. 

IX.  Constitutions.  Constitutions  are  always 
laws  and  guarantees— -' sponsio  communis* — the  fun- 
damental and  organic  law,  and  in  many  cases  they 
are  actual  and  solemn  pacts  and  covenants.  In 
another  work  I  have  endeavored  to  show,  that  in 
countries  in  which  the  rulers  do  not  directly  come 
from  the  people,  and  periodically  return  to  them, 
but,  on  the  contrary,  are  as  to  their  appointment  re- 
moved beyond  the  influence  of  the  people,  in  all 
hereditary  governments,  but  especially  in  monarchies, 


CHAPTER    VI. SECTION     IX.  173 

constitutions  are  always  in  a  certain  point  of  view  to 
be  considered  as  contracts  between  the  people  on 
the  one  side,  and  the  ruling  race  or  dynasty  on  the 
other,  whether  nominally  made  as  contract  or  grant- 
ed by  the  monarch,  so  long  as  either  party  insists  on 
the  maintenance  of  the  constitution,  and  does  not 
allow  the  other  party  to  break  it.  The  preamble  of 
the  instrument  does  not  change  the  matter,  and  the 
French  charter  granted  by  Louis  XVIII.  was  a  sol- 
emn compact  so  long  as  either  party  repelled  the 
aggressions  of  the  other  ;  and  when  the  party  of  the 
rulers  finally  came  to  invalidate  the  constitution  in 
some  of  its  vital  points,  the  nation  did  not  reason 
on  the  ground  that  as  the  king  had  given  it,  the 
king  might  take  it,  but  that  the  charter  is  a  solemn 
covenant,  and  to  subvert  it  is  subverting  the  very 
foundation  of  government,  throne  and  all,  and  in  re- 
modelling the  charier  we  find  a  declaration  '  that  the 
throne  is  vacant  de  facto  and  de  jure,'  among  other 
things  substituted  for  the  previous  preamble  in  which 
were  the  words :  Nous,  that  is,  the  king,  avons  vol- 
ontairement  et  par  lihre  exercice  de  notre  autorite 
royale  accorde  et  accordons,  fait  concession  et  octroi 
a  nos  sujets,  &;c.^ 

(1)  In  French,  a  constitution,  nominally  or  really  granted 
trom  the  mere  grace  and  good  will  of  the  ruler,  is  called  oc^roi/^c. 
Hardly  had  I  published  in  the  article  Constitution,  in  the  Ency- 
clopcedia  Americana,  the  following  remarks,  when  the  French 

15* 


174  H  E  K  :.I  E  N  E  U  T  I  C  S  . 

Some  constitutions  assume  more  or  less  the  dis- 
tinct character  of  a  contract,  or  even  that  of  a  treaty, 
made  by  contracting  powers,  such  as  the  constitu- 
tion of  the  Germanic  confederacy  ;  others  are  gen- 
eral rules  which  have  been  settled  and  expressed,  as 
much  in  order  to  lay  down  general  principles  of 
action,  so  that  disorder  may  be  prevented,  and  every 
citizen  may  know  what  he  may  safely  do,  and  what 
he  ought  to  avoid,  as  to  limit  the  power  of  those  in 
authority,  that  they  may  not  make  improper  and 
dangerous  use  of  it.  This  is  the  case  with  the  state 
constitutions  in  the  United  States. 

revolution  of  1830,  proved  that  all  France  took  the  same  view. 
A  chartered  constitution,  or  '  constitution  octroy6e,  partakes  much 
of  the  nature  of  a  compact,  as  soon  as  the  people  have  sufficient 
spirit  and  sense  of  justice  to  prevent  it  from  being  infringed  or 
abolished,  and,  asserting  the  natural  rights  of  men,  whose  rulers 
exist  only  for  their  benefit,  avow  that  they  will  submit  to  the 
government  only  as  long  as  the  government  observes  the  consti- 
tution. In  fact,  a  constitution  octroyie,  in  any  case,  can  hardly 
be  regarded  otherwise  than  as  a  compact,  proceeding,  as  it  does, 
from  the  wants  of  the  times  and  the  demands  of  the  people,  and 
expressing  the  intention  of  the  ruler  to  observe  certain  rules, 
which  these  wants  and  demands  prescribe.  Where  would  be  its 
value,  how  could  it  be  regarded  as  a  fundamental  law,  control- 
Jing  the  operations  of  the  government,  if  it  were  liable  to  be 
abolished  at  any  moment,  at  the  pleasure  of  the  sovereign  ? 
That  the  monarch  acted  from  compulsion  in  granting  the  consti- 
tution, only  proves  that  the  character  of  the  times  made  it  in- 
dispensable. The  French  ultras  are  grievously  mistaken,  when 
they  pretend  that  the  king  may  abolish  the  Charte  because  he 
granted  it.  It  is  not  the  words  with  which  it  is  prefaced,  but 
the  circumstances  under  which  it  was  given,  that  are  to  deter- 
mine its  character.  It  was  granted  to  satisfy  the  demands  of 
the  French  people,  and  as  a  pledge  for  the  security  of  tlieir  lib- 
erties ;  and  as  long  as  they  hold  to  the  grant,  it  is  impossible  for 
the  ruler  to  recall  it.  Such  a  constitution,  therefore,  may  be 
considered  as  resting  virtually  on  a  compact.' 


CHAPTER     VI. SECTION     IX,  175 

If  we  survey  all  political  constitutions  with  refer- 
ence to  our  subject,  we  shall  find  the  following 
classes  : 

Constitutions,  which  consist  of  a  declaration  of 
rights,  whether  freely  established  by  the  people,  or 
granted  by  the  authority,  or  wrung  by  the  former 
from  the  latter,  and  of  certain  broad  principles, 
which  are  to  be  observed  in  governing  the  people  : 
but  not  of  a  description  of  the  form  of  government, 
and  a  limitation  of  the  various  authorities  thereof ; 
such  as  the  English  declaration  of  rights,  although 
the  law  and  custom  deposited  in  the  long  history  of 
England,  form  a  very  detailed  constitution. 

Constitutions,  which  aim  at  defining  the  govern- 
ment and  its  powers,  and  are  the  emanation  of  the 
sovereign  will  of  a  whole  state  or  nation. 

Constitutions,  which  are  formal  compacts  between 
a  nation  and  a  ruling  race.  They  originate,  when 
a  family  not  fully  or  clearly  entitled  to  the  throne  is 
called  to  occupy  it,  on  the  distinct  understanding 
contained  in  the  constitution  ;  such  was  the  case 
with  Louis  Philippe,  king  of  the  French,  Leopold, 
king  of  the  Belgians,  Bernadotte,  king  of  Sweden, 
and  several  others  ;  or  they  may  originate  after  civil 
strifes  between  the  people  and  their  rulers,  and,  in 
these  cases,  are  laid  down  as  the  distinct  compact  on 
which,  for  the  future,  the  two  parties  are  agreed  tp 
support  and  protect  each  other. 


176  HER.AIENEUTICS. 

Constitutions,  which  consist  in  formal  compacts 
between  contracting  powers,  independent  of  each 
other  before  the  conclusion  of  the  compact,  where 
distinct  points  are  granted  and  limits  defined  ;  as 
was  the  case  with  the  United  Provinces  of  the  Low 
Countries,  and  is  the  case  with  the  United  States 
of  America,  the  cantons  of  Switzerland,  and  other 
confederacies.  These  latter  constitutions  will  always 
be  more  or  less  affected  by  a  most  powerful  element, 
which  nevertheless  may  be,  strictly  speaking,  extra- 
political,  namely,  by  the  principle  of  nationality.  A 
confederacy  may  consist  of  sovereign  members,  and 
yet  language,  religion,  common  civilization,  common 
origin,  in  short  a  common  history,  may  furnish  most 
powerful  ties  and  influential  elements  besides  the 
pronounced  and  strictly  acknowledged  political  ties 
of  the  union. 

X.  In  considering  the  conslruciion  or  interpre- 
tation of  constitutions,  it  is  necessary  to  mention, 
once  more,  that  wherever  human  language  is  used, 
interpretation  or  construction  becomes  indispensable, 
even  with  regard  to  constitutions.  The  constitution 
of  the  United  Slates  says  :  that  congress  shall  have 
the  power  of  regulating  commerce,  but  it  does  not 
say  how  far  this  regulatory  power  shall  extend. 
This  sentence,  then,  must  be  interpreted,  if  we  are 


CHAPTER     VI  . S  E  C  T  I  O  N     X  .  177 

desirous  to  ascertain  what  precise  meaning  the  fra- 
mers  of  our  constitution  attached  to  it,  and  construed, 
if  we  are  desirous  of  knowing  how  they  would  have 
understood  it  respecting  new  relations,  which  they 
could  not  know  at  the  time,  and  which  nevertheless 
fall  decidedly  within  the  province  of  this  provision. 
The  many  debates,  at  various  periods,  on  this  very 
provision,  sufficiently  prove  that  it  is  differently  un- 
derstood by  different  men  and  parties,  and  that  con- 
sequently, conscientious  construction  is  called  for. 
The  question  is  not,  shall  we  construe  at  all  ?  but : 
what  are  the  safe  and  general  rules  of  political  con- 
struction ? 

To  argue,  as  has  been  done,  that  the  necessity  of 
construction  shows  the  futility  of  constructions,  is 
altogether  inadmissible,  for  it  would  equally  apply  to 
any  law  whatever,  to  all  contracts  and  wills,  to  any 
human  language,  and  to  the  bible  no  less  than  to 
political  codes. 

The  following  rules  appear  to  me  the  most  essen- 
tial  in  constitutional  hermeneutics  : 

1.  A  primary  rule,  suggested  by  mere  common 
sense,  and  yet  so  frequently  abandoned,  both  in  re- 
ligion and  politics,  and  always  the  more  flagrantly 
so  the  more  men  are  obliged  by  the  unsoundness  of 
their  view,  to  resort  to  special  pleading  is,  that  we 
ought  not  to  build  arguments  of  weighty  importance 


178  HERMENEUTIC  S. 

on  trifling  grounds,  not  to  hang  burdens  of  great 
weight  upon  shght  pegs  ;  for  instance,  an  argument 
of  the  highest  national  importance  upon  the  casual 
position  of  a  word.  This  rule  applies  to  all  and 
every  construction,  indeed,  but  it  naturally  becomes 
the  more  important,  the  more  important  the  sphere 
is  in  which  we  have  to  construe. 

2.  If  no  genuine  construction  of  any  text  whatev- 
er can  take  place  without  good  faith  and  conscien- 
tiousness, it  is  most  especially  the  case  with  regard 
to  politics ;  for  no  human  wisdom  can  possibly  devise 
an  instrument,  that  may  not  be  interpreted  so  as  to 
effect  any  thing  but  that  for  which  the  constitution 
was  established,  or  the  fundamental  principles  laid 
down.  We  gain  nothing  by  verbosity,  or  a  minute 
enumeration  of  details ;  for  a  constitution  is  to  em- 
brace all  branches,  and  hold  good  for  many  genera- 
tions. If  we  attempt,  then,  to  detail  every  thing 
before  hand,  we  only  impede,  fetter,  and  obstruct. 
Experience  has  fully  proved  this.  On  the  other 
hand,  if  the  constitution  contains  only  the  great 
principles  and  general  outlines  of  the  state,  faithless 
interpretation  has  free  play.  Where,  then,  is  the 
essential  guaranty  of  liberty  ?  No  where,  but  in  the 
breast  of  the  citizen.  Constitutions  are  useful,  and 
indispensable  for  the  clear  understanding  of  each 
other  on  the  most  important  subjects  of  society,  and 


CHAPTER      VI  . S  E  C  T  r  O  N       X  .  179 

a  manly  knowledge  of  that  all-important  element  of 
right  and  civil  liberty  —  the  relation  of  the  individ- 
ual to  the  political  society  in  the  aggregate  —  the 
state,  as  well  as  for  furnishing  to  an  independent 
judiciary,  a  fulcrum  to  rest  its  lever  on,  against  laws 
hostile  to  that  true  relation  of  the  individual  to  the 
state  laws,  which  otherwise  must  crush  the  individ- 
ual. But  constitutions  do  not  make  liberty  ;  liberty 
is  not  decreed  in  so  many  words  on  parchment. 
That  parchment,  with  its  ink  upon  it,  may  be  eaten 
by  the  worms,  may  be  torn  by  any  daring  hand ; 
but  if  they  are  but  the  pronouncing  and  solemn  ex- 
pression of  that  which  lives  within  the  nation,  the 
written  words  of  the  living  essence,  it  is  far  other- 
wise. 

Under  the  best  constitution,  political  crimes  and 
offences  of  all  sorts  can  easily  be  committed,  eTs  soon 
as  the  spirit  of  the  people  allows  those  in  power  to 
construe  it  for  that  purpose  ;  and  a  people,  animated 
by  a  manly  spirit,  may  force  those  in  power  to  con- 
strue an  Unfavorable  constitution  and  dangerous  pre- 
rogative, agreeably  to  the  civil  spirit  which  animates 
the  whole  society.  Imagine  the  English  constitu- 
tion with  a  lax,  yielding,  degenerate  or  servile  peo- 
ple—  imagine?  Look  at  the  history  of  Henry  VIJI. 
What  is  there  that  a  minister  might  not  do,  if  he  had 
a  mind  to  betray  his  nation,  and  if  the  people  would 


180  H  E  R  M  E  N  E  U  T  I  C  S  . 

let  him  do  it,  without  in  one  single  instance  acting 
against  the  letter  of  the  law  of  Great-Britain.  As  to 
words,  the  privileges  of  the  crown  are  immense.  The 
very  efficiency  of  parliament  hangs  by  very  slender 
threads,  as  to  the  words  or  forms  of  the  constitu- 
tion ;  but  can  a  minister  discard  parliament  ?  The 
whole  history  of  James  I.  and  his  successor  is  but 
one  continued  commentary  upon  the  fact,  that  faith- 
less interpretation  and  construction  will  be  able  to 
defeat  the  true  object  of  almost  any  form  of  words. 

It  is,  as  was  alluded  to  already,  not  otherwise  in 
religion.  We  shall  do  to  others  as  we  wish  others 
to  do  unto  us.  Faithless  construction  might  say,  I 
wish  to  lead  a  life  of  licentiousness,  and  am  perfect- 
ly willing,  nay,  desirous,  that  others  should  lead  it. 

Blackstone,  in  the  fourth  volume  of  his  Com- 
mentaries, in  a  note  to  page  439,  says,  with  great 
naivete :  '  The  point  of  time  at  which  I  would 
choose  to  fix  this  theoretical  perfection  of  our  public 
law,  is  the  year  1679  ;  after  which,  the  habeas  cor- 
ims  act  was  passed,  and  that  for  licensing  the  press 
had  expired,  though  the  years  which  immediately 
followed  it  were  times  of  great^rac^t'caZ  oppression.' 
The  italicising  is  not  my  own  ;  yet  the  commentator 
has  marked  them  as  if  to  illustrate  the  above  rule. 

The  constitution  of  the  Brasilian  empire  is  found- 
ed on  decidedly  liberal  principles  ;   but  how  are  the 


CHAPTER     VI.— SECTION     X.  181 

people  treated,  or  rather,  what  do  they  make  of  it 
themselves?  The  constitution  of  the  United  States 
bestows  prerogatives  upon  the  president,  which 
might  deprive  the  people  of  all  liberty,  the  moment 
they  should  become  indifferent  enough  to  allow  it. 
Nor  do  I  say  that  less  power  ought  to  have  been 
conferred  upon  the  American  chief  magistrate.  It 
would  be  a  great  mistake  to  suppose,  that  any  thing 
would  be  gained  by  merely  tying  the  hand  of  the 
executive ;  then  the  power  would  be  somewhere 
else,  and  equally  obnoxious  to  abuse. 

3.  The  principle,  that  '  the  general  prevails  over 
the  particular,'  is  of  great  importance  with  regard  to 
constitutions  ;  it  amounts  to  saying,  that  the  <  pub- 
lic welfare  is  the  supremest  law  of  every  country,  is 
above  the  supreme  law.'  Even  the  Chinese,  'that 
nation  of  incurable  conservatives,'  acknowledge  in 
their  four  sacred  books,  literally  the  principle,  'salus 
populi  suprema  lex.^ ' 

There  can  be  no  construction,  therefore,  contrarv 
to  this  law  of  laws,  or  vital  principle  of  every  law, 
all  appearance  to  the  contrary.  No  prerogative,  no 
privilege  can  exist  against  public  welfare  ;  but  in 
acknowledging  this,  we  must  take  great  care  that  we 
do  not  fall  into  two  serious  errors.     First,  we  must 

(1)  Davis's  Chinese,  London,  1836,  vol.  2,  the  chapter?  on 
Confticius,  Religion,  ^^c. 

16 


182  HERMENEUTICS. 

have  a  proper  conception  of  the  pubhc  welfare,  and 
not  understand  by  this  term,  as  is  frequently  the 
case,  physical  prosperity  only,  high  prices,  good 
wages,  flourishing  commerce,  &;c.,  for  though  these 
are  concomitant  parts  of  real  public  welfare,  yet 
they  are  by  no  means  its  only  elements,  or  only 
tests.  They  have  been,  in  not  a  few  instances,  the 
dangerous  guise,  under  which  absolute  power  and 
oppressive  tyranny  have  stolen  into  the  mansion  of 
public  liberty.  Nothing,  indeed,  is  more  common 
than  that  usurpers  promote  industry  and  commerce. 
They  are  generally  wise  men,  who  know  the  great 
value  of  national  activity,  and,  apart  from  their  am- 
bitious plans,  are  frequently  men  of  lofty  and  noble 
dispositions,  not  naturally  inchned  to  harm  others, 
but  ready  to  do  so  when  prompted  by  their  aspiring 
views.  Secondly,  we  must  guard  ourselves  against 
mistaking  our  private  views  and  interests,  our  pas- 
sions and  appetites,  for  public  wishes  or  demands  ;  in 
short,  against  confounding  our  individuality  with 
public  welfare.  This  applies  to  citizens  as  well  as 
rulers,  to  each  one  in  his  sphere,  and  naturally  so, 
for  all  are  the  same  compound  beings. 

There  have  been  few  usurpers,  or  political  trans- 
gressors, on  a  large  or  small  scale,  who  did  not  pro- 
test, that  they  have  disregarded  the  law  of  the  land, 
or  the  acknowledged  principles  of  civil  liberty,  be- 


CHAPTER     VI. SECTION     X.  183 

cause  public  welfare  demanded  the  violation.  It 
was  one  of  the  alleged  principles  on  which  Ernest 
of  Hanover  lately  founded  his  revolutionary  act  which 
annulled  the  constitution  of  the  land.  Yet  it  re- 
mains true  on  the  other  hand,  that  those  states  are 
doomed  to  decline,  and  fall  to  ruin,  which  endeavor 
to  rule  by  ancient  laws  and  forms  only,  and  obsti- 
nately resist  the  progress  and  spirit  of  the  age,  as  if  the 
public  mind  could  be  encircled  or  checked  by  oral 
or  written  sentences. 

Those  Danes,  therefore,  were  right,  who  main- 
tained that  that  most  curious  of  all  fundamental 
laws,  by  which,  in  the  year  1660,  the  king  was 
made,  by  desire  of  the  people,  '  hereditary  and  ab- 
solute sovereign,'  and,  according  to  which,  no  fun- 
damental laws  should  have  any  force,  except  the 
one,  that  nothing  should  bind  the  king  —  that  even 
this  law  only  had  a  meaning,  by  tacitly  supposing 
that  the  king  would  use  this  power  for  the  welfare 
of  the  people. 

4.  Constitutions  should  be,  in  ordinary  cases, 
construed  closely,  because  their  words  have  been 
well  weighed,  and  because  they  form  the  great  con- 
tract or  agreement,  between  the  people  at  large,  or 
between  the  people  and  their  ruling  race.  It  mat- 
ters not,  as  has  been  stated,  whether  the  constitution 
declares,  that   it   is  a  free  gift  of  the  sovereign's 


184  HE  RMENEU  TIC  S. 

bounty;  as  did  the  French  charter  of  Louis  XVIII ; 
for,  on  the  one  hand,  as  soon  as  the  people  accept 
of  it,  and  as  long  as  ihey  insist  on  it,  it  is  a  bond 
fide  contract;  and  on  the  other,  it  js  well  known, 
that  no  sovereign  grants  a  charter,  except  when  cir- 
cumstances require  it.     The  very  charter  proves  it. 

5.  The  more  a  constitution  partakes  of  the  char- 
acter of  a  solemn  compact,  the  closer  its  construc- 
tion must  be  ;  for  we  have  no  right  to  construe  or 
interpret  otherwise,  if  there  are  several  parties. 
Construction  of  federal  constitutions,  therefore, 
ought  to  be  close  ;  especially  if  they  distinctly 
pronounce,  that  the  authority  and  power  granted 
therein  is  all  that  is  granted,  and  that  nothing  shall 
be  considered  as  granted,  except  what  is  mentioned, 
as  is  the  case  with  the  constitution  of  the  United 
States  of  America. 

6,  All  the  rules  which  relate  to  precedents,  de- 
mand peculiar  attention  in  the  construction  of  con- 
stitutions. For  on  the  one  hand,  one  of  the  great 
objects  of  government  is  security  and  peace,  which 
includes  stability,  by  which  is  not  only  meant  the 
absence  of  revolutions,  but  also  the  certainty  of 
rights,  and  legal  as  well  as  political  relations ;  on 
the  other  hand,  an  unfortunate  concurrence  may 
cause  a  law  to  be  passed,  or  the  people  to  acquiesce 
\xi  it ;  yet,  if  every  law  or  measure,  adopted  on  the 


CHAPTER    VI. SECTION      X.  185 

ground  of  strong  expediency,  were  always  elevated 
to  a  principle,  it  would  frequently  thwart  some  of 
the  most  important  objects  of  the  constitution  itself. 

We  should  follow  in  this  particular  the  Digest, 
which  declares,  as  one  of  the  regula  juris,  L.  50, 
Tit.  17,  162,  quoted  before,  that  'That  which  has 
been  adopted  from  necessity  cannot  be  applied  to 
similar  cases.'     See  farther  below  on  Precedents. 

T.  Transcendent  construction  ought  to  be  resorted 
to,  regretting  the  necessity  which  obliges  us  to  make 
use  of  it,  rather  than  seeking  how  we  may  contrive 
to  justify  a  transgression  of  power,  or  stretch  the 
constitution  to  obtain  it.  We  ought  ever  lo  be 
mindful,  that  every  transcendent  construction  may 
be  but  the  beginning  of  fearful  inroads. 

8.  As  we  may  interpret  a  will  with  greater  ease 
than  a  contract,  and  a  contract,  if  it  relates  to  a  few, 
who  concede,  more  comprehensively  than  a  law,  so 
we  may  construe  a  law  with  more  freedom  (provided 
no  party  be  injured  thereby)  than  a  constitution ;  for 
the  latter  contains  the  most  general  rules  applying 
to  all.  They  are  calculated,  then,  for  something 
that  is  common  to  every  one  ;  and,  as  there  can  be 
but  fewer  things  common  to  all  in  a  large  commu- 
nity, than  among  a  few  persons,  or  between  two,  it 
is  necessary  strictly  to  adhere  to  those  fewer  points, 
IG* 


186  HERMENEUTICS. 

lest  we  should  enter  apon  something  which  is  not 
any  longer  common  to  all. 

9.  Seek  for  the  true  spirit,  which  pervades  the 
whole  constitution,  and  interpret  in  good  faith  accor- 
dingly, provided  this  spirit  is  in  favor  of  public  wel- 
fare, which  is  not  the  case  with  all  constitutions,  or 
the  instrument  be  not  irreconcilable  with  the  present 
time,  having  been  established,  for  instance,  in  past 
ages,  and  according  to  a  spirit,  which  has  long  been 
supplied  by  a  characteristically  different  one. 

Constitutional  history  proves  that  it  is  of  moment, 
that  the  speaker  of  the  popular  house  should  not 
only  be  eligible  by  the  house,  but  also  be  indepen- 
dent of  the  crown  ;  for  a  speaker  without  considera- 
ble power,  impedes  rather  than  promotes  the  busi- 
ness ;  but  if  this  influential  person  is  dependent  upon 
the  crown,  the  liberty  and  usefulness  of  the  house  is 
greatly  injured,  as  we  see  in  the  periods  of  the 
Jameses  and  Charleses.  The  new  French  charter, 
therefore,  (article  37)  takes  the  power  of  confirm- 
ing the  president  of  the  deputies,  from  the  crown, 
which,  according  to  the  charier  of  1814,  it  had. 
The  speaker  of  the  British  commons,  however,  must 
be  confirmed  by  the  crown,  as  the  constitution 
stands,  though,  of  course,  the  coronal  privilege  has 
not  been  acted  upon  for  a  long  time.  Suppose  a 
minister  should  advise  the  crown  to  disapprove  the 


CHAPTER     Vi. SECTION    X.  187 

choice  of  a  speaker  on  improper  grounds,  it  would 
be  right  for  the  commons  to  remonstrate,  being 
guided  by  a  most  comprehensive  construction  of  this 
privilege,  namely,  that  it  has  not  been  acted  upon 
for  many  years,  that  it  is  against  the  present  spirit  of 
liberty,  that  the  French  have  seen  fit  to  abolish  it, 
and  that  they,  the  Commons,  have  not  proposed  a 
law,  rescinding  the  coronal  privilege,  because  it  is 
understood  to  be  antiquated,  except  on  very  mo- 
mentous grounds. 

It  was  the  misfortune  of  the  French  nobility,  that 
a  part  of  them  insisted  upon  their  privileges,  as  es- 
tablished by  the  ancient  law,  though  many  of  them 
were  excessively  burdensome  and  galling  to  the 
people. 

10.  But  if  the  constitution  itself  provides  for 
lawful  changes  of  itself,  this  necessity  exists  in  a  far 
less  degree.  Still  it  exists  ;  the  case  supposed  in 
the  previous  paragraph  is  in  point.  No  constitution 
has  easier  remedies  provided  for  than  the  British, 
inasmuch  as  Parliament  is,  according  to  constitution- 
al terminology,  'omnipotent,'  and  a  law  may  at' any 
time  change  the  most  essential  feature  of  the  realm. 
Parliament  might,  if  public  opinion  would  allow 
them,  abolish  the  habeas  corpus  act  forever. 

1 1 .  If  the  constitution  acknowledges  the  necessa- 
ry rights  of  the  citizen,  civil  libcrtv  is  benefitted  by 


188  HERMENEUTICS. 

close  interpretation  as  the  rule,  and  comprehensive 
as  the  exception  only  ;  because  the  former  defines 
and  settles,  and  thus  allows  a  distinct  and  traditional 
knowledge  of  the  civil  rights  to  grow  up,  and  to  in- 
fuse itself  deeply,  and  in  a  thousand  directions  into 
practical  life ;  so  that  the  body  of  citizens  is  anima- 
ted by  civil  steadiness  and  manhness,  and  a  deep- 
rooted  love  of  justice,  which  teaches  them  to  esteem 
each  other's  rights,  because  they  know  them. 

But  if  civil  liberty  and  security  themselves  have 
grown  up  only  by  continued  comprehensive  con- 
struction of  old  laws,  which,  for  some  reason  or 
other,  are  not  changed,  or  which  it  may  not  even  be 
desirable  to  change,  in  favor  of  civil  liberty,  this 
comprehensive  construction  is  most  important.  In 
short,  let,  with  a  manly  nation,  every  thing  that 
is  in  favor  of  power,  be  closely  construed ;  every 
thing  in  favor  of  the  security  of  the  citizen  and  the 
protection  of  the  individual,  comprehensively,  for 
the  simple  reason,  that  power  is  power,  and,  there- 
fore, able  to  take  care  of  itself  as  well,  as  tending, 
by  its  nature,  to  increase,^  while  the  citizen  wants 
protection.  For  the  same  reason  ought  we  always 
to  be  ready  to  construe  comprehensively  in  favor  of 
the  independence  of  the  judiciary,  and  against  the 

fl)  Political  Ethics,  vol.  I.  on  Public  Power. 


CHAPTER     VI.  — -SECTION     X.  189 

executive,  because  it  is  all-important  that  the  judi- 
ciary be  independent,  while  it  has  none  of  those 
many  influential  means  of  the  executive,  no  pagean- 
try, no  honors  to  bestow,  but  few  salaries  to  dis- 
pense, no  army,  navy,  orders,  crosses,  titles,  lawns. 
or  grants  of  land  at  its  disposal.  It  rests  on  opin- 
ion —  a  mighty  power,  indeed,  if  it  chooses  to  act, 
or  is  not  crushed.     Hence  it  must  be  shielded. 

An  attentive  observer  of  the  political  course  of 
France,  during  the  last  half  century,  has  probably 
nothing  to  deplore  so  much,  as  the  habitual  unsteady 
construction  put  upon  her  fundamental  laws  by  all 
parties,  so  that  few  debates  occur  in  the  chamber  on 
any  important  subjects,  in  which  recourse  is  not  had 
to  the  very  first  principles  of  government,  which  lie 
beyond  the  constitution,  we  would  almost  say,  to 
political  metaphysics.  The  enormous  administra- 
tions which  preceded  the  revolution,  as  far  back  as 
that  of  Louis  XIV.  had  rooted  up  every  civil  prin- 
ciple, and  prevented  any  steady  growth  of  civil  lib- 
erty. Absolute  governments,  whether  brilliant  or 
not,  have  always  this  effect.  Their  nature  causes 
it.  If  a  people  trusts  to  personality,  its  institutions 
will  be  undermined.  Louis  XIV.  was  considered 
with  a  feeling  of  national  vanity,  le  grand  monarque; 
he  died,  and  in  what  condition  did  he  leave  France? 


190  HERMENEUTICS. 

The  reign  of  Elizabeth,  which  cannot  be  denied  to 
have  been  glorious,  tried  some  institutions  severely, 
because  she  was  so  popular.  James  came  and  tried 
to  do  the  same,  or  excel  his  predecessor,  without 
having  her  superior  judgment — a  revolution  ensued  ; 
Athens  trusted  to  Pericles  and  his  personal  quali- 
ties—  great,  indeed  —  and  neglected  her  institutions, 
and  when  death  deprived  them  of  a  Pericles,  they 
must  allow  themselves  to  be  ruled  over  by  a  Cleon, 
the  currier.  The  reign  of  Frederic  William  II. 
after  Frederic  the  Great,  might  even  be  mentioned 
as  not  without  bearing  upon  the  subject. 

Of  the  construction  of  those  two  important  priv- 
ileges—  the  veto  and  the  pardoning  power  —  con- 
ferred by  many  constitutions  upon  the  chief  magis- 
trate, I  shall  treat  in  the  second  volume  of  the 
Political  Ethics. 

XI.  One  of  the  most  important  subjects  for  inter- 
pretation and  construction,  are  international  treaties. 
Their  very  importance,  and  the  extensiveness  of  the 
subject,  as  well  as  the  fact  that  it  has  been  treated  of 
in  various  works,  induces  me  to  dismiss  it  here,  after 
one  remark  only,  namely,  that  treaties  being  most 
essentially  founded  upon  good  faith,  for  there  is  no 
superior  power  to  enforce  them,  they  require,  like» 


CHAPTER     Vi. SECTION     XI.  191 

wise,  most  urgently,  the  same  principle  in  construe- 
ing  them.  Happily  it  has  been  found  that  it  is  also 
the  most  politic  way  of  .proceeding.  Honest  diplo- 
macy is  vastly  preferable,  even  on  the  mere  ground 
of  expediency,  to  that  species  in  which  Louis  XIV. 
was  such  an  unwearied  adept. 

See  Vattel's  Law  of  Nations,  chap.  XVH; 
Grotius,  PufFendorf^  and  Wheaton  on  International 
T^aw. 


CHAPTER   VII. 


Precedents. — Definition. — Natural  Power  of  Precedents. — Pow- 
er of  Precedent  in  England. — Reasons  of  the  Powerful  Influ- 
ence of  Precedents. — 'Wisdom  of  our  Forefathers.' — Lineal 
Assent,  Contemporary  Assent. — Great  Force,  for  Good  or  Evil^ 
of  Precedents  in  Politics. — Reasons. — Distinction  between 
Legal  and  Political  Precedents. —  Precedents  of  a  mixed  Char- 
acter.— Precedents  necessary  for  the  Development  of  Law 
for  Civil  Liberty. — They  settle  the  Knowledge  of  what  is 
Law. — Necessary  Qualities  of  sound  Legal  Precedents. — Ex- 
ecutive Acts  are  no  Precedents,  except  for  subordinate  Officers, 
if  not  against  Law. — Fearful  Instance  of  Executive  Precedent 
in  the  History  of  the  Star  Chamber. — No  Man  shall  take  ad- 
vantage of  his  own  Wrong. — Sound  Precedents. — Precedents 
must  be  taken  with  all  their  Adjuncts. — No  Precedent  weighs 
against  Law. and  Right. — Still  less  against  Reason. — Prece- 
dents must  not  increase  Public  Power. — Precedents  must 
settle,  not  unsettle.— Precedents  may  be  overruled  if  necessary. 
The  greatest  Lawyers  have  done  so.  for  instance,  Lord  Coke, 

I.  In  settling  that  which  is  uncertain,  in  law  and 
politics,  and,  therefore,  in  construction  likewise,  great 
aid  is  derived  from  precedents  and  authorities.  I. 
shall  treat  first  of  precedents. 


CHATTER     VII  . S  ECTION     II.  193 

A  precedent,  from  pracedere  to  precede,  to  move 
before,  is  a  case,  having  happened  previous,  yet 
being  analagous  to,  or,  in  its  characteristic  points, 
the  same  vi^ith  another  before  us.  In  law  and  poli- 
tics, precedents  signify,  in  particular,  decisions,  pro- 
ceedings, or  a  course  of  proceedings,  vrhich  may  serve 
for  a  rule  in  subsequent  cases  of  a  similar  nature. 

The  important  question  is,  have  precedents  any 
binding  power  ?  Ought  they  to  have  any  binding 
power,  where  the  question  has  not  been  settled  that 
we  are  to  follow  them  ?  And  if  so,  why  and  under 
what  circumstances  ?  Before  these  questions  can 
be  answered,  it  is  necessary  to  look  into  the  nature 
of  precedents. 

II.  Precedents  possess  a  natural  power,  that  is 
to  say,  they  exercise  every  where  a  considerable 
influence  upon  the  judgment  of  men,  in  private  as 
well  as  public  life;  it  is  now  and  always  has  been 
the  case,  with  barbarous  tribes  as  well  as  civilized 
nations.  If  a  child  is  chid  for  some  act  or  other,  it 
thinks  to  find  some  extenuation,  if  it  can  assert  that 
another  child  has  done  the  same.  When  the  min- 
isters of  Louis  Philip,  king  of  the  French,  r.  few 
years  ago,  issued  an  ordinance,  respecting  the  erec- 
tion of  some  fortifications  around  Paris,  they  cited  a 
similar  one,  issued  as  early  as  under  Louis  XIV. 
17 


194  HERMENEUTICS, 

The  most  absolute  chiefs  of  semi-civilized  tribes  are 
pleased  to  find  real  or  pretended  rules  for  their  acts, 
in  the  examples  of  their  forefathers.  Few  argu- 
ments have  a  greater  weight  with  all  early  nations, 
than  the  assertion  of  some  old  and  experienced  man, 
that  he  remembers  the  father  or  grandfather  of  the 
chief  or  king  to  have  acted  so  or  so  in  a  similar  case. 
Hardly  any  measure  of  government  is  recommended 
by  the  administration  papers  in  free  countries,  with- 
out pointing  to  a  similar  and  previous  case  ;  and  if 
no  argument  can  be  found  to  make  an  unpopular 
measure  palatable,  or  to  extenuate  some  act  of  the 
executive,  this  one  of  recurring  to  previous  cases,  if 
argument  it  can  be  called,  is  sure  to  be  resorted  to. 
And  when  the  British  commons  struggle  with  their 
king  for  liberty,  nothing  gives  them  so  firm  and  solid 
a  support  as  when  they  can  stand  upon  a  precedent. 
On  what,  indeed,  did  the  commons  rest  their  rights 
in  the  beginning  of  their  great  struggle  with  Charles 
I.,  except  on  precedents  ?  So  powerful  is  precedent 
in  that  country,  foremost  in  the  history  of  constitu- 
tional development,  that  the  absence  of  precedents 
in  high  constitutional  questions,  is,  frequently,  of 
equal  weight.  When  earl  Danby,  under  Charles  II., 
was  impeached  of  high  treason,  and  pleaded  the 
king's  pardon  in  bar  of  the  same,  the  commons  al- 
leged '  that  there  was  no  precedent   that   ever   any 


CHAPTER      VII  . S  ECTION      II.         196 

pardon  was  granted  to  any  persons  impeached  by 
the  commons  of  high  treason,  or  other  crimes,  de- 
pending the  impeachment,'  and  thereupon  resolved, 
'  that  the  pardon  so  pleaded  was  illegal  and  void, 
and  ought  not  to  be  allowed  in  bar  of  the  impeach- 
ment of  the  commons  of  England ' ;  but  they  sup- 
ported their  resolution  by  the  reason,  '  that  the  setting 
up  a  pardon  in  bar  of  an  impeachment,  defeats  the 
whole  use  and  effect  of  impeachments ;  for  should 
this  point  be  admitted,  or  stand  doubted,  it  would 
totally  discourage  the  exhibiting  any  for  the  future  ; 
whereby  the  chief  institution  for  the  preservation  of 
government  would  be  destroyed.'  ^  On  the  other 
hand,  no  claims  of  the  crown  were  so  powerful  at 
the  most  critical  periods  for  British  liberty,  as  those 
supported,  in  truth  or  pretence  only,  by  precedents. 
Whence  does  this  natural  and  universal  influence 
■and  authority,  ascribed  or  tacitly  yielded  to  prece- 
dents, often  salutary,  often  fearful,  arise  ?  From 
various  reasons,  as  the  following  may  show. 


(1)  Soon  after  the  revolution  of  1688,  the  commons  renewed 
their  just  claim,  and  at  length  it  was  enacted,  12  and  13  William 
and  Mary,  c.  2.  that  no  pardon  under  the  great  seal  of  England 
ehall  be  pleadable  to  an  impeachment  by  the  commons  in  parlia- 
ment. The  American  constitutions  deprive  the  magistrate, 
who  is  invested  with  the  pardoning  privilege  for  common  cases, 
of  the  same  in  several  cases  touching  sentences  in  consequence 
of  impeachments 


196  HER  MENEU  TICS, 

III.  By  citing  a  precedent,  we  at  once  become 
followers  and  cease  to  be  leaders  ;  our  responsibility, 
therefore,  seems  to  be  divided,  or  at  any  rate  is 
shared  by  some  one  else.  We  no  longer  appear  as 
innovators  ;  there  are  at  least  two,  that  have  done  the 
same  thing.  In  matters  of  a  doubtful  point  of  high 
importance,  especially  in  constitutional  matters,  we 
leave,  by  a  precedent,  the  high  seas  of  theory,  and 
cast  anchor  in  the  solid  ground  of  practical  life. 
We  moor  in  reality,  and  it  requires  an  additional 
power  to  weigh  anchors,  which,  for  good  or  evil, 
have  buried  their  flukes  in  substantial  ground. 

if  nothing  disapproving  has  been  said  or  done^ 
when  a  measure  took  place,  we  construe  silence  into 
tacit  assent,  tacit  permission.  Of  many  actions, 
however,  we  can,  according  to  their  nature,  know 
only  that  they  have  been  done,  but  not  what  oppo- 
sition they  have  met  with.  The  want  of  knowledge, 
too,  that  they  were  opposed,  makes  it  appear  to  us 
that  they  received  a  tacit  assent. 

We  all  feel,  that  if  we  were  never  to  build  upon 
what  has  been  established  and  decided,  but  were  to 
begin  in  every  single  case  entirely  anew,  progress- 
in  any  branch  would  be  impossible. 

We  honor  our  parents,  and  the  aged,  because  the 
probability  of  greater  experience  is  in  favor  of  them 
kind  of  reasoning  of   especial  force  in    those 


CHAPTER     VII. SECTION      III.  J  97 

periods  in  which  nearly  the  whole  store  of  public 
experience  is  traditionally  handed  down,  or  has  to 
be  gathered  by  personal  experience  through  a  long 
life — in  short,  when  books  have  not  yet,  in  a  con- 
siderable measure,  supplanted,  if  not  individual  ex- 
perience, for  that  they  never  can,  yet  knowledge  of 
public  matters,  individually  gathered.  And  secondly, 
the  prima  facie  evidence  of  the  expediency  of  a  law 
is  in  favor  of  an  old  one,  for  what  has  lasted  so  long 
should  be  supposed  not  to  be  inexpedient.  Fortes- 
cue,  in  the  seventh  chapter  of  his  work,  De  Laudi- 
bus  Legg.  Angl.,  has  a  long  argument,  that  the 
English  laws  are  the  best  because  the  oldest. 

As  to  the  first,  however,  we  must  guard  ourselves 
against  a  common  error,  namely,  of  extending  the 
belief  in  that  wisdom,  which  we  naturally  ascribe  to 
persons  older  and  more  experienced  than  ourselves, 
and  especially  to  our  parents  and  grandparents,  in  a 
progressively  higher  degree,  to  their  parents  and 
grandparents  also,  in  short,  to  our  forefathers  ;  though 
their  lives,  and  consequently  their  opportunity  for 
gathering  experience,  may  have  been  much  shorter 
than  ours  has  already  been.  Tliis  error  is  attributa- 
ble to  a  confusion  of  ideas.  Old  may  mean  a  living 
old  man,  who  may  have  more  experience  than  a 
young  one  ;  but  it  may  also  apply  to  past  genera- 
tions, which,  if  all  the  other  circumstances  are  the 
17* 


198  HERMENEUTICS. 

same,  cannot  possibly  have  had  an  equally  favorable 
opportunity  for  experience  with  ourselves.  We  are, 
indeed,  as  to  experience,  the  old  ones,  and  the  past 
generations  the  young  ones,  provided  all  the  oppor- 
tunities are  the  same,  or  we  do  not  throw  away  the 
experience  of  past  ages  by  neglecting  faithfully  to 
study  them  ;  for  in  this  case,  it  is  very  evident,  we^ 
become  again  the  'younger  ones.'  Tacitus  says 
already  :  '  Nee  statim  deterius  esse  quod  diversum 
est :  vitio  autem  malignitatis  humanae  vetera  semper 
in  laude,  praesentia  in  fastidio  esse.^'  Equally  erro 
neous  it  is  if  unexperienced  arrogance  believes  that 
every  idea  newly  occurred  to  the  individual,  is  on 
that  account  new  altogether  and  excellent,  and  as  if 
the  great  problem  of  each  day  were  to  nullify  all 
history  up  to  that  day,  I  shall  dwell  on  this  impor- 
tant point  of  political  ethics,  in  the  second  volvmie 
of  the  work  on  that  subject,  and  add  here  only,  that 
the  '  wisdom  of  the  forefathers "  may  be  a  sentence 
of  sound  sense,  or  entirely  empty.  It  depends  en- 
tirely  upon  the  fact,  what  forefathers  we  mean,  and 
whether  they  had  a  favorable  opportunity  to  know 
much  upon  the  point  in  discussion.  It  frequently 
happens,  that    a    fundamental    law    of  a  country  is 


(I)  Dial,  xviii.  Also,  Vt'lleiiis  ii.  ;  2.  See  also  Sir  Thomas 
Browne,  Vulgar  Errors,  Adherence  unto  Antiquity.  The  second 
vol  of  Pol.  Ethics  will  coiitain  a  rapre  full, discussion  of  tl:is. 
Bubject. 


C  H  A  P  T  E  K     VII . S  ECTION     111.        199 

adopted  at  a  period,  when  universal  enthusiasm  ren- 
ders purity  of  action  more  common,  than  is  the  case 
in  easy  times,  when  self-devotion  is  little  called  for, 
and  selfishness  diffuses  itself  in  all  classes.  Thus  it 
was  a  great  epoch,  when  the  American  colonies  de- 
clared themselves  free,  and  there  can  be  no  doubt 
that  there  was  more  self-devotion  in  that  congress  at 
Philadelphia,  than  will  be  now  found  in  our  easy 
times  in  an  equally  large  number  of  men.  Those 
times  were  more  exciting  to  virtue,  and  if  we  speak 
of  the  patriotic  signers,  there  is  truth  in  the  expres- 
sion. Not  that  they  were  better  organized  beings. 
for  the  favorite  saying  of  lord  Nelson,  that  there  are 
as  good  fish  left  in  the  sea  as  have  come  out  of  it,  is 
very  true,  but  the  combination  of  circumstances  was 
more  favorable. 

As  to  the  second  point,  the  antiquity  of  laws,  it 
altogether  depends  upon  the  fact,  whether  they  are 
good  or  not.  Tonnage  and  Poundage,  the  ruin  of 
Charles  I.  were  granted  first  for  the  life  of  the 
prince  to  Henry  V.,  as  a  recompense  for  recovering 
his  right  to  France,  but  under  a  special  proviso  that 
it  should  not  be  held  as  a  precedent  in  the  case  of 
future  kings :  '  But  yet,'  says  Sir  Edward  Coke, 
'  all  the  kings  after  him  have  had  it  for  life,  so  forci- 
ble is  once  a  precedent  fixed  in  the  crown,  add  what 
proviso  you  will.'^ 

(1)  2d.  InBt.  p.  01.     4.t!i  Inst.  p.  32.. 


200  HERMENEUTICS. 

An  old  law,  moreover,  has  left  a  beaten  track,  it 
has  all  the  force  of  custom  and  habit,  which  form, 
in  all  spheres  of  hiinaan  life,  strong  reasons  to  ad- 
here to  that  which  is  already  established.  That 
which  is  new  is  disturbing  and  distracting.  These 
reasons,  natural  in  themselves,  operate  sometimes 
most  mischievously. 

When  Sir  S.  Romilly  proposed  to  abolish  the 
punishment  of  death  for  stealing  a  pocket  handker- 
chief, the  Commons  of  England  consulted  Sir  J. 
Sylvester,  the  recorder,  and  Mr.  S.  Knowles,  thg 
couimon-sergeant,  as  to  the  proposed  improvement. 
They  answered,  '  that  such  an  alteration  would  en- 
danger the  whole  criminal  law.'  The  common 
objection  to  any  melioration,  by  those  who  disrel- 
i.'^h  it. 

IV.  Further  reasons  of  the  force  of  precedents 
or  of  that  which  exists  already,  are,  that  in  politics 
and  law,  that  species  of  assent  which  might  be  called 
lineal  assent,  in  contradistinction  to  cotemporaneous 
assent,  has  a  different  force,  from  what  it  has  in 
history.  For  the  question  in  politics  and  law  is 
about  the  continued  action  of  a  principle,  and  if  this 
has  been  assented  to  for  generations,  we  must  be- 
lieve there  is  good  ground  for  it,  and  leave  it  un- 
touched, unless  we   see  sufficient  and  clear  reason 


CHAPTER      VII. SECTION        IV.         201 

why  we  should  set  it  aside  ^  for  instance,  because 
times  have  changed,  or  assent  was  not  free  and  vol- 
untary. In  history,  it  disposes  us  in  favor  of  a 
statement,  if  it  is  proved  that  its  truth  was  univer- 
sally admitted  at  the  time.  I  say  it  inclines  us 
favorably,  but  it  affords,  by  no  means,  sufficient 
proof,  as  history  or  even  the  affairs  of  common  life 
frequently  prove.  Many  high  personages  who  died 
suddenly,  have  been  universally  supposed  at  the 
time,  to  have  been  poisoned.  But  the  lineal  assent 
is  of  itself  of  no  value  whatever  in  history.  If  a 
statement  be  originally  made  in  such  a  way,  that  it 
excites  our  suspicion,  or  is  deprived  of  the  force  of 
substantial  proof,  it  becomes  no  more  probable,  by 
the  most  implicit  belief  of  ever  so  many  centuries. 
If  it  can  be  proved,  that  some  statement  with  regard 
to  the  foundation  of  Rome,  is  highly  improbable,  or 
involves  an  impossibility,  it  matters  not  whether 
Livy  believed  it  or  not,  or  whether  the  middle  ages 
believed  Livy,  or  whether  it  has  been  repeated  by 
many  thousand  authors  relying  upon  Livy  or  those 
who  subsequently  believed  him.  The  number  of 
assenters  is  of  some  value  with  regard  to  contempo- 
raries, but  of  none  whatever  in  successive  genera- 
tions, unless  the  original  statement  has  been  subjected 
to  continually  renewed  criticism.  In  this  case,  the 
degree  of  our  assent  is  regulated  by  the  keenness 


202  HERMENEUTICS. 

and  sincerity  of  subsequent  criticism,  and  not  by  the 
fact  that  many  successive  generations  have,  or  have 
not,  beheved  in  the  first  statement.  Another  in- 
stance is  the  behef  in  one  Homer.  If  it  is  proved 
that  the  poems  heretofore  ascribed  to  Homer  can- 
not have  been  produced  by  one  poet,  but  must 
be  a  collection  of  poems  by  various  authors,  all  the 
belief  of  the  many  generations  in  one  Homer  has 
no  weight. 

But  with  a  nation,  with  whom  liberty  has  been  a 
practical  question  for  centuries,  and  with  whom  it 
has  been  long  acknowledged  that  the  stability  of  the 
law  is  one  of  the  main  ingredients  of  civil  liberty— r- 
a  nation,  moreover, — who  did  not  receive  the  sub- 
stance of  civil  liberty  from  some  other  countiy,  but 
developed  it  gradually  itself,  as  the  English  have 
done,  the  precedent  must  acquire  a  peculiar  force. 
British  civil  liberty  is  so  powerful  a  thing,  because 
each  important  question  has  come  before  the  com- 
mons as  a  practical  case.  Law,  it  was  acknowledged 
by  all,  should  decide,  but  what  was  law  ?  The 
people  had  nothing  but  the  precedent  to  protect 
themselves  against  encroaclmient,  and  though  pre- 
cedents worked  fearfully,  in  many  cases,  for  the 
crown,  yet  I  believe  no  historian  will  hesitate  to 
acknowledge  that  one  of  the  most  essential  elements 
of  Anglican  liberty,  is  Precedent.     The   very   faci 


CHAPTER     VII  . S  ECTION      IV.         203 

that  something — no  matter  what — beyond  the  reach 
of  power  was  acknowledged  as  law  between  the 
power  and  the  people,  was  a  great  principle,  not  to 
speak  of  the  immense  power  which  a  citizen,  strug- 
gling for  a  good  caiis^,  has  when  he  can  stand  upon 
precedent  opposite  to  power.  The  whole  air  of 
revolutionary  innovation,  of  rebellious  resistance,  is 
taken  from  his  act,  and  the  attempt  at  revolution  is 
thrown  on  the  other  party.  The  king  and  his  ser- 
vants, therefore,  judged  correctly  when  they  resolved 
upon  the  arrest  of  Sir  Robert  Cotton,  the  antiqua- 
rian, because  he  furnished  the  leaders  of  the  popular 
party  with  precedents.^  They  knew  how  irresistible 
a  power  was  latent  in  those  dusty  papers ;  how 
mighty  history  is  with  a  constitutional  people  which 
has  worked  for  its  liberty. 

Precedents,  like  every  other  thing,  may  be  sadly 
misapplied .  The  most  absurd  as  well  as  the  most  crim- 
inal political  acts,  are  propped  with  precedents.  The 
corrected  calender  of  pope  Gregory  XIII.  was  op- 
posed among  other  reasons,  because  to  correct  or 
change  it  was  claimed  as  an  imperial  privilege,  he- 
cause  Caesar  had  first  put  it  in  order,  and  Constan- 
tine  ordered  the  calculation  of  the  feast  of  Easter  to 
be  made   at   Nicaja !     And   the   history  or  special 

(1)  Brodie  II.  p.  155. 


204  HERMENKUTICS. 

law  of  cities  and  communities,  shows  that  most  oi 
the  strangest  and  exorbitant  privileges  claimed  by 
individuals  or  communities  over  others,  are  founded 
upon  nothing  else  but  precedents,  that  is,  mere  facts. 
A  nobleman  extorts  from  a  community  so  many 
bushels  of  grain  in  one  year,  therefore,  he  has  a 
right  to  demand  it  the  next. 

It  is  very  necessary,  then,  that  we  should  ascer- 
tain what  precedents  have  binding  power,  and  how 
far  they  have  it. 

V.  Before  we  proceed,  however,  it  is  necessary 
that  we  should  make  a  clear  distinction  between 
legal  and  political  precedents,  the  want  of  which 
has  led,  at  times,  to  very  erroneous  and  dangerous 
notions. 

A  precedent  in  law,  or,  as  it  is  called,  a  legal 
precedent,  is  a  decision  arrived  at  after  patient  in- 
quiry into  all  points  hearing  upon  the  doubtful  sub- 
ject, by  an  impartial  judge,  who  stands  between  or 
above  the  two  parties,  and  is  removed  beyond  the 
circle  of  interests  within  which  the  two  litigating  par- 
ties move.  A  legal  precedent,  therefore,  is  the 
settling  of  a  doubtful  point  by  that  very  authority. 
which  is  created  by  society,  among  other  things,  for 
the  settling  of  doubts  between  different  parties. 
Society  has  no  better  way  of  making  clear  and  sta- 


CHAPTER     V  I  f  . S  E  C  T  I  O  N     V.        206 

ble  that  which  was  doubtful  and  unsettled.  It  is 
evident,  that  as  long  as  there  is  no  positive  reason 
why  we  should  deviate  from  such  a  legal  decision, 
we  should  adhere  to  if.  Nor  is  it  in  any  way  desi- 
rable, that  in  all  matters  of  legal  doubt  the  highest 
legislative  authority  should  be  appealed  to,  as  is  the 
case  in  many  European  states.  This  leads  to  a 
continued  and  injurious  intermeddling  of  the  execu- 
tive with  the  law,  fetters  the  independence  of  the 
judiciary  (one  of  the  very  elementary  requisites  for 
all  liberty,)  and  throws  an  impediment  in  the  way 
of  a  free  and  wholesome  development  of  the  law, 
according  to  the  spirit  of  the  nation.  Nor  is  it  pos- 
sible for  high  authorities  to  establish  general  rules, 
which  will  apply  so  precisely  to  the  endless  variety 
of  combinations  in  law,  as  the  authority  of  prece- 
dents is  able  to  do,  if  rationally  limited^  and  not 
carried  to  an  idolatry  of  the  past  or  the  established. 
As  the  opposite  to  legal  precedents,  we  may  con- 
sider measures  of  the  executive.  They  differ  in 
their  very  character  from  the  former.  They  are  oot 
tiie  decision  made  between  two  parties  by  a  third 
and  impartial  one,  but  they  are  nothing  but  acts. 
They  may  be  good  or  bad  ;  they,  like  any  otJier 
acts,  cannot  become  better  by  repetition,  if  they  are 
bad  in  the  beginning. 
18 


206  HERMENEUTIC9. 

Lastly,  precedents  may  be  of  a  somewhat  mixed 
character  ;  they  may  neither  have  legal  impartiality, 
nor,  on  the  other  hand,  be  mere  acts.  Many  legis- 
lative acts  are  examples  of  this  kind.  Inasmuch  as 
measures  are  debated,  before  a  legislative  assembly 
adopts  them,  we  may  compare  them  to  the  balanc- 
ing of  the  opposite  interests  in  court ;  but  inasmuch 
as  the  legislative  assembly  does  not  judge  of  an  oc- 
curring case,  according  to  prescribed  laws,  but,  on 
the  contrary,  is  making  these  very  laws,  and  inas- 
much, also,  as  the  different  interests  are  represented 
in  an  assembly  of  this  kind,  by  two  different  parties, 
indeed,  but  very  frequently  not  impartially  weighed 
by  the  same  persons,  their  decisions  partake  of  the 
character  of  measures  and  act?,  such  as  we  have 
mentioned  already. 

VL  We  have  already  seen,  that  no  human  wis- 
dom can  contrive  to  make  laws,  which  will  precisely 
cover  all  complex  cases  that  may  occur,  whatever 
attention  may  be  paid  by  the  law-makers  to  the  va- 
riety of  compound  cases,  which  they  are  able  to 
imagine  ;  and  that  it  is  not  in  the  power  of  any 
human  intellect,  though  of  the  most  gigantic  grasp, 
to  draw  up  a  political  constitution,  so  as  to  leave  no 
doubtful  case  untouched,  considering  the  condition 
of  society  at  the  time  of  its  being  drawn  up.  As  to 
future  generations,  the  problem  becomes  still  more 


CHAPTER     VII  . S  ECTION     VI.       207 

impracticable ;  because  the  state  of  human  society 
is  continually  changing,  and  ought  to  change,  ac- 
cording to  its  very  principles  of  existence.  This  is 
a  rule,  so  well  established,  that  statesmen  and  law- 
yers are  now  agreed  upon  the  wisdom  of  pointing 
out  principles  and  drawing  general  outlines  in  a  clear 
and  easily  understood  language,  in  constitutions  and 
laws,  rather  than  of  giving  minute  details,  which,  in 
whatever  degree  we  may  augment  the  enumeration 
of  minutiae,  have  a  tendency  rather  to  contract  than 
to  extend.  It  is  far  easier  to  act  upon  laws,  in  a 
manner  corresponding  to  the  intention  of  the  legis- 
lator, when  they  are  brief  and  clear,  and  rely  upon 
common  sense,  than  when  the  details  embarrass 
every  step,  and  prevent  the  application  of  the  gene- 
ral principle,  because  the  specific  case  has  not  been 
enumerated  and  singled  out  by  the  law-maker. 

As  it  is,  however,  a  well-known  maxim  in  politics 
and  jurisprudence,  that  the  certainty  of  law  is  next 
in  importance  to  its  justice  —  and  by  certainty  of 
law  we  understand  both  that  it  be  well  defined, 
known  and  unwavering,  as  also  that  its  penalties  fall 
with  unerring  certainty  upon  those  who  deserve 
them  —  it  becomes  necessary  that  doubtful  points, 
springing  up  from  a  new  state  of  things,  should,  if 
once  settled,  be  considered  so,  until  a  weighty  reason 
:.oduces  us  to  deviate  from  the  settled  decision. 


208  HERMENEUTirS. 

VII.  Without  this  rule,  civil  liberty,  which  de- 
pends in  so  high  a  degree  upon  a  universally  diffus- 
ed knowledge  of  rights  and  obligations,  as  well  as 
upon  the  stability  of  government  (for  instability  of 
government  engenders  civil  immorality),  becomes 
impossible.  A  citizen,  conscientiously  desirous  of 
doing  right,  can  obtain  no  advice  from  the  counsel, 
whose  profession  consists  in  the  knowledge  of  the 
laws,  in  any  complicated  case,  if  the  lawyer  himself 
does  not  know  a  certain  general  rule,  or  law,  v\  hich 
may  be  applied  to  the  compound  case  under  consid- 
eration. Hence,  too,  we  find  that  the  citizens  of 
those  countries,  in  which  public  liberty  has  been 
highly  praised,  require  their  rulers  to  swear,  before 
they  assume  the  highest  power,  that  they  will  gov- 
ern according  to  law  and  custom  ;  and  custom  is  but 
precedent.  Some  of  the  gravest  charges  against 
impeached  ministers,  or  of  revolted  subjects  against 
their  monarchs,  have  been,  that  the  accused  individ- 
uals had  disregarded  the  customs  of  the  land. 

Without  due  regard  for  precedents,  no  develop- 
ment and  expansion  of  any  fundamental  law,  that  is, 
no  expanded  application  of  the  principles  it  contains, 
commensurate  with  the  expansion  of  society,  and 
the  change  and  progress  of  all  relations,  can  possi- 
bly take  place.  If  nothing  becomes  settled,  disorder 
must  be  the  consequence.     Words  may  mean  very 


CHAPTER    VII  , S  ECTION     VIII.   209 

indefinite  things ;  it  is  by  practice  only,  that  they 
acquire  definite  significations.  Is  not  this  the  case 
between  friends,  or  men  brought  together  in  any 
collegiate  relation  ?  It  is  still  more  the  case,  in  the 
great  political  intercourse  of  citizens. 

'  The  King  willeth  that  right  be  done,  according 
to  the  laws  and  customs  of  the  realme,'  &c.  The 
King's  Answer  to  the  Petition  of  Rights,  Rush- 
worth,  T.  1,  p.  590.  The  king  of  Great  Britain 
swears,  at  his  coronation,  to  govern  ^according  to 
the  statutes  in  parliament,  agreed  on,  and  the  laws 
and  customs  of  the  same/ 

VIII.  In  a  free  country,  then,  where  a  knowl- 
edge of  the  citizen's  rights  is  all  important,  a  prece- 
dent in  law,  if  correctly  and  clearly  stated  —  this  is 
an  essential  requisite  —  and  if  applied  with  discern- 
ment, and  with  the  final  object  of  all  law  before  our 
eyes,  ought  to  have  its  full  weight.  If  there  has 
been  a  series  of  uniform  decisions  on  the  same  point, 
they  ought  to  have  the  force  of  law,  because  in  this 
case  they  have  become  conclusive  evidence  of  the 
law.     (See  Dupin's  Jurisprudence  des  Arrets). 

lu  politics,  we  ought  to  foHow  precedents,  which 
touch  upon  matters  of  law,  or  which  partake  decided- 
ly of  the  character  of  legal  decisions  upon  previously 
doubtful  points,  as  long  as  we  have  no  decided  and 
18* 


210  HERMENECTICS, 

obvious  reasons  why  we  should  deviate.  As,  how- 
ever, most  important  questions  in  politics  toueh  upon 
those  broad  and  original  principles,  upon  which  the 
protection  of  the  citizen,  and  the  security  of  the 
state,  mainly  depend  ;  it  will  be  found,  that  prece- 
dents in  this  sphere  will  have  far  less  authority  thai, 
in  law.  It  is  the  essential  duty  of  a  lawgiver  and 
statesman,  to  act  always  on  distinct  political  princi- 
ples and  reasons,  and  to  recur  to  them  in  every  sin- 
gle case.  A  deviation  from  these  principles  involves 
a  world  of  injury. 

It  seems  that  an  imperfection  of  law,  loses,  in 
numerous  cases,  much  of  its  evil  character,  merely 
by  the  fact  of  its  being  universally  known  ;  as  a 
piece  of  rock,  which  has  fallen  into  a  road,  is  cer- 
tainly an  inconvenience,  but  if  all  the  people,  who 
are  in  the  habit  of  travelling  that  road,  know  that 
this  obstruction  is  in  their  way,  they  will  avoid  it, 
and  a  travelled  road  will  form  itself  around  it.  Its 
inconvenience  is  greatly  lessened  by  its  being  sta- 
tionary and  known  ;  if,  however,  that  piece  of  rock 
were  frequently  moved  to  different  places,  the  injury 
to  every  traveller  would  be  incalculable.  Blasting 
the  rock  into  atoms  would  be  the  best  course  ;  but, 
perhaps,  it  cannot  be  conveniently  done,  without  in- 
jury to  the  interests  of  others,  or,  at  any  rate,  those 
who  travel  the  road,  may  not  have  the  means  or  the 
right  of  doing  it. 


CHAPTER     VII  . S  ECTION      IX.         211 

This  applies  to  law  ;  in  politics  proper,  as  we 
have  said  already,  fundamental  principles,  and  a  con- 
stant recurrence  to  them,  are  far  more  important, 
on  account  of  the  greater  importance  of  these 
principles. 

Whenever  we  are  doubtful,  and  there  are  many 
such  cases  in  law,  we  should  adhere  to  precedents, 
because  they  carry  along  with  them  the  additional 
reason  of  security.  The  statesman,  however,  must 
take  into  consideration  the  effects  which  his  meas- 
ures will  have ;  his  decisions  will  be  generally 
known  by  their  very  character  ;  and  the  greater 
part  of  the  decisions,  at  which  he  will  arrive,  are 
rules  themselves,  and  not  decisions  according  to 
given  rules, 

IX.  Executive  acts  ought  never  to  be  considered 
r,s  precedents  by  any  one  but  the  inferior  executive 
officer,  and  he,  too,  must  be  conscientiously  con- 
vinced, that  the  first  act  was  not  against  the  law.  If 
we  were  to  take  every  executive  act  as  a  precedent, 
and  a  justification  of  similar  subsequent  ones,  it 
would  be  monstrous,  and  subversive  of  the  very 
principles  of  a  free  govermnent.  The  legal  prece- 
dent is  a  decision  between  parties,  but,  in  this  case, 
the  executive  itself  forms  a  party.  The  only  point, 
which  might  be  insisted  upon  with  an  appearance  of 
plausibility,  would  be,  that  a  general  acquiescence  in 


212  HERMENEIJTICS. 

a  measure,  changes  it  into  a  precedent ;  but  this  is 
the  more  dangerous  and  fallacious,  as  the  act  in 
question  is  frequently  of  a  kind,  that  either  it  cannot 
be  well  ascertained,  whether  general  acquiescence 
has  taken  place,  or  that  the  demonstration  of  the 
contrary  is  im|>ossibIe.  A  theory  of  this  dangerous 
sort  would  be  founded,  moreover,  upon  a  principle 
contrary  to  free  government  on  another  ground.  It 
is  one  of  the  fundamental  principles  of  a  free  gov- 
ernment, that  a  citizen  has  not  only  the  right  of  dis- 
senting from  those  in  power,  but  also  publicly  to 
pronounce  it,  and  to  unite  with  others,  in  order  to 
dislodge  by  combined  strength,  and  by  using  fair  and 
honest  means,  those  who  ai'e  invested  for  the  time, 
with  the  insignia  of  authority.  What  sense  would 
otherwise  the  words  minority  and  majority  have  ? 
It  is  a  most  sacred  right  of  every  freeman,  who  be- 
longs to  the  minority,  to  convince  his  fellow  citizens, 
if  he  can,  of  the  justice  of  his  cause,  and  gradually 
to  make  the  minority  to  which  he  belongs,  the  ma- 
jority. What,  however,  can  the  majority  do,  but  to 
follow  the  footsteps  of  the  preceding  one,  if  pohti- 
cal  precedents  shall  have  the  authority  of  legal 
ones,  or  any  binding  power  approaching  to  them. 
The  judge  ought  not  to  decide  upon  his  principles, 
or  upon  any  principles  other  than  those  of  the  estab- 
lished   law  ;    the  politician   stands  upon  an  entirely 


CHAPTER     VII. SECTION     X.  213 

different  ground.  It  is  upon  the  very  difference  of 
principles,  that  a  different  adnninistration  comes  into 
power. 

If  tlie  legal  rules  of  precedents  were  to  be  applied 
to  the  acts  of  the  executive,  or  of  any  authority 
which  exercises  power  (for  this  seems  to  be  the  cri- 
terion), then  any  successful  transgression  of  power 
would  at  once  establish  the  right  of  transgressing  it 
for  ever.  Is  there  a  free  country  on  earth,  whose 
history  does  not  mention  repeated  instances,  when 
those  invested  with  power  or  prerogatives,  have  dis- 
regarded some  of  the  rights  and  franchises  of  the 
people,  considered  by  them  as  vitally  important  to 
their  liberty  and  well-being  ?  There  is  hardly  a 
tyrant  ever  so  vile,  who  will  not,  or,  indeed,  who 
cannot,  cite  precedents  for  his  most  atrocious 
offences. 

X.  As  precedents  in  law  are  taken  from  that 
same  law,  we  can  judge  better  of  their  value,  and 
whether  their  authority  ought  to  be  perpetuated  ; 
but  in  politics,  to  take  precedents  from  the  history 
of  other  nations,  becomes  in  the  same  degree  delu- 
sive and  dangerous,  as  that  history  is  less  known  to 
us,  in  all  the  many  details,  which  may  have  had  a 
bearing  upon  the  precedent.  A  rule,  that  never 
ought  to  be  departed  from,  is,  that  wherever  power 


214  n  E  R  M  E  N  K  U  T  I  C  S  . 

is  supposed  to  have  been  unduly  exercised,  let  the 
case  be  decided  on  its  own  merits  ;  because,  as  we 
have  seen  in  a  previous  chapter,  it  is  the  natural, 
inherent  and  necessary  attribute  of  all  power,  physi- 
cal or  moral,  that  it  tends  to  increase.  Moral  power 
is  not  necessarily  evil  disposed  on  this  account,  but 
it  cannot  be  power  without  this  tendency  ;  if,  then, 
political  precedents  should  always  be  entitled  to  re- 
spect, they  would  only  increase  and  propel,  and, 
therefore,  extend,  instead  of  regulating,  its  motion 
and  effect. 

'  And  that  your  Majestie  would  also  vouchsafe  to 
declare,  that  the  awardes,  doeings,  and  proceedings, 
to  the  prejudice  of  your  People,  in  any  of  the 
premisses,  shall  not  be  drawn  hereafter  into  conse- 
quence or  example.'  Petition  of  rights  (drawn  up 
by  Lord  Coke,  then  Sir  Edward)  presented  lo 
Charles  I.  June  2,  1628. 

XI.  For  the  same  reason,  precedents,  in  regard 
to  questions  of  doubted  jurisdiction,  assumed  and 
decided  upon  by  the  same  court,  whose  power  is 
doubted,  are  of  less  value  than  those  which  occur  in 
the  decision  of  law  cases.  The  court  here  forms  a 
party,  and  the  stare  decisis  does  not  apply  with 
equal  force,  as  in  a  proper  law  decision. 

The  force   of  precedents  in   law,  rests  partly  on 


CHAPTER     VII. SECTION      XII.      215 

this,  that  similar  cases  have  been  decided  one  way 
or  the  other,  by  men  living  at  a  different  lime  or  at 
different  places,  and  when  the  points  in  question 
were  argued  by  different  counsel.  In  this,  too,  legal 
precedents  differ  materially  from  mandates  of  the 
executive  construed  into  precedents. 

It  may  be  adopted  as  a  sound  maxim,  I  believe, 
that  the  more  the  advocates  of  a  political  measure 
feel  themselves  obliged  to  rely  on  precedents,  the 
less  they  ought  to  be  trusted,  and  on  no  account 
ought  precedents  alone  to  decide  any  thing  in  politics, 
if  doubts  exist  at  all. 

XII.  Perhaps  no  case  shows  more  clearly,  the 
danger  of  taking  executive  measures  for  precedents, 
than  the  history  of  the  star-chamber.  I  copy  the 
following  from  Brodie  : 

'  When  this  pernicious  court  was  first  established 
by  Wolsey,  it  proceeded  with  great  caution.  The 
'president  of  the  Icing^s  council  was  added  by  stat. 
21  Henry  VIII.  c.  20,  to  the  number  of  judges  — 
a  clear  proof  that,  even  at  this  late  period,  it  was 
conceived  to  be  quite  distinct  from  the  council  — 
and  by  certain  acts  of  Parliament,  both  in  that  reign, 
and  even  in  Elizabeth's,  some  particular  kinds  of 
cases  were  committed  to  its  jurisdiction.  But  it,  in 
no  long  time,  assumed  a  bolder  tone,  till  it  even  dis- 


216  H  E  R  M  E  N  E  U  T  I  C  3  . 

owned  its  origin.  The  whole  privy  council  arroga- 
ted the  right  of  sitting  there  in  j'udgment,  and  the 
question  was  no  longer  what  the  statutes  allowed, 
but  what  the  council  in  former  times  had  done. 
Having  once  adopted  the  principle  of  precedent,  it 
no  longer  submitted  to  any  check  upon  its  proceed- 
ings. Every  act  of  the  council  in  the  worst  times, 
was  raked  up,  though  so  many  statutes  were  devised 
against  such  proceedings  ;  cases  were  grossly  misrep- 
resented :  strained  analogies  were  resorted  to  ;  and 
where  no  shadow  of  a  precedent  could  be  discover- 
ed, ingenuity  could  invent  —  a  proceeding  the  more 
simple,  as  no  regular  record  was  kept ;  while  every 
abominable  recent  case  was  held  to  be  conclusive  in 
all  future  ones.  Where  no  precedent  could  be  dis- 
covered or  invented,  then  the  paramount,  uncontrol- 
lable power  of  a  court,  in  which  the  monarch  might 
preside  in  person  as  sole  judge,  (for  having  held  it 
to  be  the  same  as  the  council,  they  next  assumed 
that  principle)  was  entitled  to  provide  a  remedy  for 
any  alleged  disorder.  The  judges  of  this  court, 
toft,  neglected  no  means  for  advancing  so  arbitrary  an 
institution.  Under  the  pretext  of  desiring  to  be  di- 
rected by  the  best  legal  advice,  they  usurped  the  power 
of  nonrainating  the  counsel  who  should  plead  before 
them  ;  a  practice  that  operated  to  the  exclusion  of 
every    man    who    had    honesty    and    independence 


CHAPTER     VII  . S  ECTION     XIII.       217 

enough  to  assert  the  rights  of  his  chent.  The  great 
Plowden  fell  under  their  severe  animadversion,  for 
reminding  them  of  stat.  3  Henry  VIII.  and  Sergeant 
Richardson,  about  thirty  years  afterwards,  incvirred 
a  censure  for  a  demurrer  to  the  same  effect.  The 
consequences  may,  therefore,  be  easily  figured : 
every  precedent  begat  a  worse ;  and,  towards  the 
close  of  Elizabeth's  reign,  though  the  star-chamber 
still  retained  some  decency,  it  had  reached  a  mon- 
strous height ;  but  under  the  Stuarts,  it  threatened  a 
general  overthrow  of  popular  rights,  and  the  en- 
grossment of  all  ordinary  jurisdiction.'  Brodie, 
vol.  I.  p.  188. 

'  No  man  shall  take  advantage  of  his  own  wrong,' 
is  a  principle  no  where  of  greater  importance, 
than  in  government  precedents. 

XIII.  Whether  we  attribute  authority  to  prece- 
dents or  not,  we  ought  always  to  pay  proper  atten- 
tion to  them  ;  for  whatever  subject  may  occupy  our 
reflection,  it  will  always  be  found  of  great  assist- 
ance, to  inquire  how  others,  in  different  situations, 
have  viewed  and  acted  upon  the  matter.  New  ideas 
will  be  suggested,  and  the  subject  will  appear  in  dif- 
ferent connexions.  Mr.  Gerard  Hamilton  (Single 
Speech  Hamilton)  gives  it  as  an  important  rule,  in 
iiis  Parliamentary  Tactics,  which  will  be  allowed  on 
19 


218  HERMENEUTICS. 

all  hands,  to  be  a  work  of  exceeding  shrewdness, 
whatever  we  may  think  of  its  principles,  that  when- 
ever a  subject  previously  acted  upon,  is  before  the 
house,  we  ought  to  read  some  works  or  pamphlets, 
written  at  the  time  when  it  previously  occupied, the 
attention  of  politicians.  Whether  we  ought  first  to 
reflect  minutely  upon  the  subject,  and  then  consider 
precedents,  or  vice  versa,  must  depend  upon  the  con- 
viction we  have  of  our  own  independence  of  thought 
upon  the  subject.  If  we  know  that  we  are  master 
of  the  subject,  and  that  our  views,  upon  those  prin- 
ciples, which  we  acknowledge  as  the  fundamental 
ones  of  our  whole  political  course,  are  clear,  then 
we  ought  first  to  view  the  matter  in  the  light  of  our 
simple  resources  alone. 

The  interests  of  the  moment,  the  magnitude,  with 
which  subjects,  in  the  very  midst  of  which  we  live, 
appear,  are  apt  to  represent  them  in  too  glaring  a 
light,  to  the  injury  of  other  more  distant  interests. 
Montesquieu  probably  meant  this,  when  he  said  : 
'  It  is  with  a  trembling  hand  that  we  ought  to  change 
laws.'  For  this  reason,  too,  precedents  demand 
attention. 

XIV.  A  precedent  ought  to  be  sound,  that  is,  it 
ought  to  come  from  good  authority,  or  a  period 
which   we  consider  favorable    to   a  thorough    and 


CHAPTER     VII.-^ — SECTION     XIV.        219 

sound  view  of  the  subject  in  question.  Even  James 
I.  said,  '  precedents  in  times  of  minors,  of  tyrants, 
of  women,  (which  was  a  very  unfortunate  slip  for  a 
James,  who  followed  an  Elizabeth)  simple  kings, 
are  not  to  be  credited,  because  for  private  ends.'^ 

Precedents  m.ust  be  taken  with  all  their  adjuncts, 
or  they  will  be  totally  misunderstood  ;  and  not  only 
with  their  adjuncts  at  the  time,  but  likewise  with 
their  consequences  and  effects. 

No  precedent  of  whatever  sort,  can  weigh  against 
i'ight  and  distinct  law,  for  the  latter  are  certainty, 
and  precedents  are  used  to  obtain  approximate  cer- 
tainty in  cases  of  doubt. 

Precedents  must  not  increase  power  against  those 
who  are  to  be  protected  ;  for  the  latter  cannot,  fre- 
quently, oppose  the  first  step  of  arrogation. 

Precedents  against  law  or  reason  must  be  set 
aside.  Lord  Coke  says :  '  Quae  contra  rationem 
juris  introducta  sunt,  non  debent  trahi  in  consequen- 
tiam.'^ 

If  the  subject  which  they  relate  to,  has  changed, 
or  if  we  are  convinced  after  patient  inquiry,  which, 
includes  a  thorough  knowledge  of  the  subject-matter, 
that  we  ought  in  justice  to  deviate  from  former  der 

(1)  BrodieI,34G. 

(2)  The  case  of  Proclamations,  Mich,  viii,  James  I,  A.  D. 
1610.     12  Coke's  Reports  74.) 


230  HERMENEUTICS. 

cisions,  we  act  wrong  m  perpetuating  that  which  is 
unjust  or  injurious  ;  for  whatever  may  be  said,  rea- 
son is  and  must  remain  above  law  and  precedent. 
A  frivolous  or  hasty  application  of  this  principle  is 
highly  dangerous  ;  yet  it  does  not  become  on  this 
account,  the  less  true.  If  we  should  consider  all 
future  cases  of  a  similar  nature,  as  prejudged  by  our 
decision,  stagnation  would  be  the  consequence,  in- 
stead of  an  expansion  and  development  of  the  law. 
There  is  such  a  thing  as  idolatry  of  precedents,  and 
an  idolatry  it  is,  which  has  slaughtered,  at  times. 
Justice  at  her  own  altars. 

One  of  the  reasons  why  due  weight  should  be 
given  to  precedents,  is,  as  we  have  seen,  the  safety 
and  security  of  the  citizens,  the  steadiness  of  the 
knowledge  of  the  law.  Adherence  to  precedents, 
however,  may  be  carried  to  such  an  extent,  that  its 
effect  is  to  the  contrary.  If  not  only  known  and 
acknowledged  precedents  are  followed,  but,  on  the 
contrary,  if  that,  which  according  to  common  sense- 
and  justice,  ought  to  be  done,  Is  omitted  for  fear  that 
some  hidden  precedent  to  the  contrary  might  exist, 
then  precedents  unsettle  instead  of  settling.  An 
effect  not  unsimilar  takes  place  when  something  is 
omitted,  which  ought  to  be  done,  merely  because  no 
precedent  is  known.  Surely  the  first  act  can  have 
had  no   precedent  ;  and   a   precedent   unknown    iu 


CHAPTER     Vir. SECTION     XIV.       221 

practice,   and   merely   hunted   up   in   the   archives, 
loses  its  very  character  of  an  authoritative  precedent. 

If  the  London  Evening  Mail  of  April  18,  1834, 
reports  correctly,  Mr.  Justice  Taunton  said,  in  the 
case  of  the  king  on  the  prosecution  of  William  Sey- 
mour, Esq.  V.  Holloway,  '  that,  however  hard  the 
case  might  be,  (another  justice  had  already  declared 
the  case  exceeding  hard)  he  did  not  remember  any 
precedent,  which  could  authorize  the  interference  of 
the  court.  The  clerk  of  the  court,  however,  would 
search  among  the  crown  records  for  a  precedent,  if 
such  existed,  and  would  inform  the  learned  counsel 
of  it ;  if  there  was  such  a  precedent,  the  learned 
counsel  could  bring  the  matter  before  the  court.' 

A  precedent  in  itself,  merely  as  a  thing  that  has 
happened,  or  been  done,  can  have  no  power  one 
way  or  the  other  ;  and  the  rule,  that  that  which  is 
wrong  in  the  beginning  cannot  become  right  in  the 
course  of  time,  is  surely  too  deeply  engraven  in 
every  man's  mind  to  be  doubted.  Many  of  the 
most  eminent  lawyers,  and  w^e  would  say,  all  the 
most  philosophical  among  them,  such  as  Lord  Mans- 
field, have  acted  upon  this  principle,  and  overrulecl 
what  was  wrong,  though  with  great  caution.' 

(1)  See  the  sound  and  clear  exposition  of  the  delicate  subject 
of  legal  precedents  in  3  Kent's  Comment.  Lect.  XX I.  p.  479 
and  seq. 

The  Roman  Law  acknowledges  the  authority  of  precedents 
in  a  far  less  degree  than  the  English  ;  in  fact,  if  we  take  the 
19* 


222  H  E  R  M  E  X  E  U  T  I  C  S  . 

Thus,  the  monstrous  patent  granted  by  Edwara 
IV.  to  his  father-in-law,  Earl  Rivers,  in  the  7th  of 
his  reign,  giving  the  vastest  powers  to  the  High  Con- 
stable and  Marshall,  is  explainable  only  on  the  ground 
of  the  then  convulsed  state  of  the  country,  and 
necessarily  under  a  sort  of  military  government.  Sir 
Edward  Coke,  therefore,  pronounced  it  '  a  most 
irregular  precedent,'  and  says  that  '  therefore  by  no 
means  the  same,  or  the  like,  is  to  be  drawn  into 
example.  4  Inst.  p.  127.  And  Lord  Bacon,  no 
friend  of  Coke's,  praises  Lord  Coke's  Reports  as 
containing  '  infinite  good  decisions  and  rulings  over 
of  cases,' 


word  precedent  in  the  English  sense,  the  former  does  not  ac- 
knowledge precedents  at  all,  but  makes  habitual  recourse  to  the 
emperor,  in  his  legislative  capacity,  necessary.  Those  nations, 
which  have  adopted  the  civil  law  as  the  main  foundation  of  their 
own,  act  upon  similar  principles.  With  them,  the  necessity  of 
judiciary  independence  upon  the  executive,  is  not  so  clearly 
acknowledged,  as  with  the  Anglican  race.  It  has  been  shown 
already  that  this  independence  requires,  in  a  considerable  de- 
gree, the  acknowledgment  of  precedental  authority. 

The  Code,  Book  1.  Tit.  16,  22,  declares  :  '  Si  imperialis  majes- 
tas  causam  cognitionaliter  examinaverit,  et  partibus  cominus 
constitutis  sententiam  dixerit :  omnes  omnino  judices  qui  sub 
nostro  irnperio  sunt,  sciant  hanc  esse  legem,  non  solum  illi 
causffi,  pro  qua  producta  est,  sed  et  omnibus  similibus.' 


CHAPTER  Vlir. 


Authorities. — Akin  to  Precedents. — Definition. — OugJit  we  to 
submit  to  them.' — Slavish  Submission  to  them  ;  Arrant  Dis- 
regard of  them. — We  must  always  adopt  Authorities  in  many 
Branches. — Main  Questions  of  Historic  Criticism. — Similar 
ones  regarding  Authorities.— Who  is  he.' — What  opportunity 
Jiad  he  to  know  the  Subject  .'--What  Motive  prompted  him  .- 
What  internal  Evidence  is  there .' — Of  what  Extent  is  the 
Authority  .' — Various  Phases  of  the  same  Authority. — Classi- 
cal Periods. 

I.  The  last  subject,  connected  with  hermeneu- 
ftics,  which  we  shall  consider,  are  authorities.  We 
have,  of  course,  not  to  consider  here  those  authori- 
ties which  by  law  we  are  bound  to  follow,  but  only 
those  which  we  feel  morally  obliged  to  acknowledge 
to  a  greater  or  less  degree.  Many  remarks  which 
were  made  in  regard  to  precedents,  apply  with. equal 
force  to  authorities,  as  most  of  the  observations 
which  will  be  made  on  the  present  subject,  hold 
good  in  regard  to  the  former,  as  is  necessary  from 
their  nature. 


224  HERMENEUTICS. 

II.  By  authority  we  understand,  in  the  Kniited 
sense  in  which  it  is  taken  here,  an  individual  whose 
opinion,  for  some  good  reason,  is  of  great  weight, 
which,  therefore,  we  use  to  support  our  argument; 
or  adopt  in  doubtful  cases,  as  a  rule  of  action,  or 
whom  we  follow  in  cases  in  which  we  have  not  the 
proper  means  to  inquire  into  the  whole  truth,  or  to 
arrive  at  a  satisfactory  decision  by  our  own  judgment 
alone. 

III.  The  first  question  here,  whicii  we  must  ad- 
dress to  ourselves,  is :  ought  we  to  submit  to  author- 
ities at  all  ?  Has  not  every  one  received  an  intellect, 
with  reasoning  powers  to  judge  for  himself?  Is  it 
not  enslaving  the  mind  to  submit  it  to  the  opinion  of 
another  ?  These  are  questions  which  I  do  not  in- 
vent, v\hile  writing  these  lines, but  which  have  been 
started  from  time  to  time,  and  are  at  this  moment 
repeatedly  asked,  and  frequently,  as  I  conceive  it. 
answered  in  a  very  unsatisfactory  manner.  There 
is  such  a  thing  as  Chinese  submission  to  ancient  au- 
thority without  criticism  and  reason,  and  there  is 
such  thing  as  arrant  sanculottism  disregarding  all 
authority,  and  leading  to  licentiousness  in  morals  and 
religion,  not  less  than  in  science,  law  and  politics. 
It  is  the  object  of  these  lines  to  aid,  if  possible,  in 
obtaining    a   clearer    view   of    this    subject,    which 


CHAPTER    VIII  . S  E  C  T  I  O  N     IV.         225 

touches  the  dearest  interests  of  society  and  the  wel- 
fare of  the  individual,  and  in  establishing  some  rules 
which  may  guide  us. 

IV.  '  Implicit  faith  belongs  to  fools,'  is  the  title 
of  the  first  chapter,  section  three,  of  Algernon  Sid- 
ney's Discourses  concerning  Government,  and  it 
might  be  added  :  blind  obedience  belongs  to  rogues 
and  not  to  honest  men.  We  must  have  reasons, 
why  we  ought  to  believe  or  obey,  why  we  ought  to 
adopt  the  opinions  of  others,  why  we  ought  to  yield 
to  their  judgment. 

The  reason  why  we  ought  to  yield  to  the  judg- 
ment of  others  is  simply  this,  that  each  individual 
cannot  be  experienced  and  thoroughly  versed  in  all 
things,  nor  has  each  one  possessed  the  same  oppor- 
tunity to  observe,  or  received  the  same  faculties  and 
endowments  for  observing  all  things.  If  my  watch 
is  out  of  order,  my  house  out  of  repair,  ray  body 
out  of  health,  I  yield  to  the  opinion  of  that  watch- 
maker, carpenter  or  physician,  whom  for  some  good 
reason  I  consider  competent  to  decide  the  respective 
cases.  If  I  write  a  book  on  human  society,  and  am 
desirous  to  know  first  of  all  the  physical  difference 
between  man  and  other  animals,  or  ascertain  the 
difference  between  ancient  and  modern  finances,  I 
JHCjuire  what  naturalists  like  Cuvier  have  said  on  the 


226  HERMENEUTICS. 

former,  or  scholars  like  Bokh  on  the  economy  of 
Athens.  If  I  desire  to  obtain  a  thorough  view  of 
oratory,  I  see  what  Cicero  has  said,  or  Demosthenes 
or  FoX;  Grattan  or  Pitt,  have  done  in  this  sphere; 
the  first,  because  I  know  that  he  had  a  good  oppor- 
tunity to  observe  and  inquire,  the  latter,  because  I 
know  they  have  effected  much  by  their  speeches. 
If  a  house  of  legislature  are  obliged  to  determine 
on  a  subject  on  which  no  member  has  a  thorough 
knowledge,  witnesses  are  examined  at  the  bar  or  be- 
fore committees,  or  the  whole  subject  is  first  inquired 
into  by  a  committee,  to  the  report  of  which  the 
legislature  grant  that  degree  ""of  assent,  which  the 
peculiar  circumstances  of  the  whole  case  may  war- 
rant. A  Shakspeare  is  good  authority  in  many 
matters  of  poetry,  but  not  in  all.  We  see,  then, 
clearly  two  things  :  we  are  daily  and  hourly  obliged 
to  acknowledge  authorities,  but  we  must  have  good 
reasons  not  only  for  our  acknowledgment,  but  also 
for  the  degree  of  our  assent.  No  more  is  demanded 
in  matters  of  law  and  politics,  than  what  every  one 
experiences  daily  in  his  individual  life.  We  omit  a 
most  important  duty,  if  we  neglect  collecting  expe- 
rience in  our  life,  by  impressing  the  result  of  impor^ 
tant,  perhaps  dearly  paid  transactions  or  events 
distinctly  upon  our  mind,  so  that  we  regulate  our 
actions  by  them,  even   at   periods,  when  the  details 


CHAPTER      VIII  . S  E  C  T  I  O  N        V  .       227 

have  vanished  from  our  memory,  and  we  only  re- 
member that  at  the  time  we  made  up  our  mind  after 
ample  experience,  and  the  resuh  at  which  we  arrived. 
This  appUes  to  cases  of  expediency,  as  well  as  to 
strictly  moral  cases.  Far  greater  is  the  duly  of  so- 
cieties in  the  aggregate,  of  communities  and  states 
to  store  up  experience,  for,  it  cannot  be  too  often 
repeated,  politics  are  not  matter  of  invention,  but  of 
experience  ;  not  an  abstract  science,  but  the  appli- 
cation of  the  eternal  principles  of  justice  and  truth 
to  ever  varying  circumstances. 

V.  If  we  are  desirous  of  ascertaining  what  de- 
gree of  belief  wc  ought  to  grant  to  a  historical 
account,  we  ought  to  ask  ourselves  before  all,  the 
following  questions  respecting  the  author  and  the 
account  itself. 

Who  is  he  ?  We  ought  to  know,  if  possible, 
where  he  lived,  how  he  lived,  what  his  connexions, 
his  mental  capacity,  his  morality,  his  temper,  whether 
rash  or  cautious,  or  over-cautious,  a  matter  of  fact 
man,  or  of  ardor  and  impulse,  whether  he  or  his 
family  have  suffered,  &;c. 

What  opporUmity  had  he  to  observe  1  Did  he 
see  things,  or  receive  them  from  the  first  source,  or 
second  hand,  or  by  distant  hearsay  ?  Was  he  en- 
gaged in  the  transactions  which  he  relates ;  did  he 
take  pains  to  learn  the  truth  ? 


228  HERMENEUTICS, 

What  motive  had  he  to  give  this  account  ?  Does 
he  endeavor  to  defend  a  party,  a  certain  transaction 
or  individual  ?  Could  he  gain  by  it,  or  did  he  ex- 
pose himself  by  giving  it  ?  Is  he  in  any  manner 
interested  in  the  matter  ?  Were  the  times  lie  lived 
in  so  agitated  by  a  certain  principle,  that  even  un- 
conscious to  him  is  gave  a  strong  bias  to  his  mind, 
one  way  or  the  other,  even  in  viewing  events  long 
passed  by  ? 

What  internal  evidence  of  truth  do  we  find  in 
the  account,  and  hoiv  far  do  those  statements  ivhich 
ice  have  in  our  jjoiver  to  compare  icith  authenticated 
statements,  agree?  We  possess,  not  unfrequently, 
accounts  of  much  importance,  the  author  of  which 
is  even  unknown  to  us,  and  yet  they  bear  such  evi- 
dence of  truth  within  them,  that  we  cannot  other- 
wise but  grant  a  high  degree  of  faith  to  them. 
Instances  are  found  in  Raumer's  late  work  contain- 
ing the  correspondence  of  ambassadors  and  other 
persons  in  high  stations,  discovered  by  him  in  vari- 
ous European  archives. 

VI.  Now,  these  rules  of  fair  criticism,  modified 
according  to  the  different  subjects,  are  applicable, 
likewise,  to  authorities  in  politics  and  law.  If  an 
authority  is  cited  to  which  we  are  expected  to  grant 
assent  or  respect,  we  ought  to  ask  ourselves  first 
of  all : 


CHAPTER     VIII  . S  ECTION     VII.       229 

Who  is  he? 

What  opportunity  had  he  to  Itnow  the  subject  7 
In  what  time  did  he  live  ? 
What  motive  prompted  him  7 
What  internal  evidence  has   the  authority  7  and 
Of  what  extent  is  the  authority  7 

\U.  Who  is  he  1  It  is  evident,  that  the  whole 
character  of  hira  who  is  claimed  as  having  estabhshed 
the  authority,  is  of  the  greatest  importance — his 
moral,  mental  and  political  character.  That  which 
is  applicable  to  individuals,  is  no  less  so  as  to  whole 
bodies  and  periods.  We  must  be  sure  that  their 
character  be  sound. 

Mr.  Greenleaf,  in  an  intereresting  paper, ^  says  : — 
•  Neither  are  all  reporters  entitled  to  equal  con- 
sideration ;  but  in  weighing  the  credit  which  they 
deserve,  regard  must  be  had  to  their  opportunities 
for  observation  of  what  passed  in  the  court,  their 
ability  to  discern,  and  their  habitual  care  and  exact- 
ness in  relating.  We  may  listen,  with  almost  im- 
plicit deference,  to  Plowden,  and  Coke,  and  Foster ; 
while  the  authority  of  some  others  is  entitled  to  little 
more  respect  than  was  shown  to  the  honest,  but 
blundering  Barnardiston,  whose  cotemporaries,  'who 
knew  the  sergeant  and   his  manner  of  taking  notes,' 

(1)  Professor  of  Law  in  Cambridge  University,  Massachu- 
setts, Introductory  Lecture,  &c.,  in  the  Law  Reporter,  Boston, 
Mass.,  December,  1838. 

20 


330  HERMENEUTICS. 

were  surprised  rather  that  he  ever  stumhled  on  what 
was  right,  than  that  he  reported  so  many  cases 
wrong.  The  manner  of  the  decision,  too,  and  the 
reasons  on  which  it  is  professedly  founded,  and  even 
the  decision  itself,  may  receive  some  coloring  and 
impress,  from  the  position  of  the  judges,  their  polit- 
ical principles,  their  habits  of  life,  their  physical 
temperament,  their  intellectual,  moral  and  religious 
character.  Not  that  the  decision  will  depend  on 
these  ;  but  only  that  they  are  considerations  not  to 
be  whoHy  disregarded  in  perusing  and  weighing  the 
judgment  delivered.  Thus  we  should  hardly  expect 
to  find  any  gratuitous  presumption  in  favor  of  inno- 
cence, or  any  leanings  in  mitiori  censu,  in  the  blood 
thirsty  and  infamous  Jeffries  ;  nor  could  we,  while 
reading  and  considering  their  legal  opinions,  forget 
either  the  low  breeding  and  meanness  of  Saunders, 
the  ardent  temperament  of  BuUer,  the  dissolute 
habits,  ferocity  and  profaneness  of  Tliurlow  ;  or 
the  intellectual  greatness  and  integrity  of  Hobart, 
the  sublimated  piety  and  enlightened  conscience  of 
Hale,  the  originality  and  genius  of  Holt,  the  elegant 
manners  and  varied  learning  of  Mansfield,  or  the 
conservative  principles,  the  lofty  tone  of  morals,  and 
vast  comprehension  of  Marshall. 

'  Neither  should  we  expect  a  decision  leaning  in 
favor  of  the  liberty  of  the  subject,  from  the  Star 
Chamber ;  nor  against  the  King's  prerogative,  among 


CHAPTER    VIII. SECTION      VIII.      231 

the  judges  in  the  reigns  of  the  Tudors,  or  of  James 
the  first ;  nor  should  we,  on  this  side  of  the  water, 
resort  to  the  decisions  in  Westminster  Hall,  to  learn 
the  true  extent  of  the  Admiralty  jurisdiction,  which 
the  English  Common  Law  Courts  have  been  always 
disposed  to  curtail,  and  in  many  points  to  deny; 
while  it  is  so  clearly  expounded  in  the  masterly 
judgments  of  Lord  Stowell,  and  of  his  no  less  dis- 
tinguished and  yet  living  American   cotemporary.' 

VIIL  What  opportunity  had  he  to  know  the 
subject?  In  ivhat  time  did  he  live?  In  cases  of 
law,  for  instance,  it  is  of  great  importance  to  know 
whether  the  case  was  amply  and  thoroughly  argued, 
and  whether  the  opinion  now  claimed,  was  given 
after  full  investigation,  and  a  detailed  examination, 
or,  perhaps,  incidentally. 

In  important  poHtical  matters,  it  is  necessary  to 
know  whether  the  authority  belongs  to  what  we  will 
call  a  classical  age,  by  which  I  mean,  that  period, 
which  by  the  concurrence  of  many  rare  and  favora- 
ble circumstances,  rendered  those  who  lived  in  .it 
peculiarly  fit  to  see  the  whole  bearing  of  a  question, 
and  which  in  its  result,  shows  that  these  questions 
were  thoroughly  understood,  perhaps  sealed  with  the 
sacrifice  of  the  dearest  interests,  even  life — periods 
which,  for  these  reasons,  carry  a  power  of  victory 
iviihin  them  for  all  successive  ages. 


^32  HERMKNEUTICS. 

A  thousand  political  and  religious  circumstances, 
conditions  of  life  and  peculiarities  of  character,  co- 
operated to  develope  the  most  exquisite  taste  in  the 
Grecian  tribes.  Their  sculpture^  their  architecture, 
has  remained  unrivalled,  and  we  are  not  only  per- 
mitted, but  bound  to  admit  them  as  good  authorities 
in  these  branches,  if  we  believe  at  all  in  progressive 
civilization,  and  that  history  assigns  the  development 
of  certain  problems  to  various  nations,  so  that  their 
activity  is  directed  to  that  point,  and  that  they  pro- 
duce some  grand  effects,  which  may  benefit  other 
nations  without  obliging  them  to  go  through  the 
same  trials,  to  make  the  same  sacrifices. 

We  find  the  same  in  politics.  The  very  spirit  of 
liberty  demands,  in  all  common  cases,  compromise ; 
a  law  shall  be  so  poised  that  it  injures  the  least  and 
benefits  the  most.  The  rights  of  all  shall  be  pro- 
portionately honored.  An  absolute  government  need 
not  weigh  matters  with  the  same  nicety  respecting 
existing  rights  ;  it  disregards  them  if  it  has  vast 
plans  in  view,  which  ultimately  result,  or  are  believ- 
ed to  do  so,  in  a  general  benefit.  If  this  circum- 
stance is  seized  upon  by  enlightened  absolute 
governments,  great  plans  may  be  carried  with  com- 
parative ease.  Masses  may  be  obliged  to  yield  and 
work  toward  the  vast  object.  We  have  an  instance 
in  the  Prussian  general  school  system.  This  being 
the  case,  other  nations  would   neglect  their  duty  not. 


CHAPTER     Vlll. SECTION    VIII.  23S 

to  adopt,  from  this  system,  those  beneficial  results 
\vhich  are  applicable  to  their  peculiar  cases,  and 
offered,  without  the  necessity  of  adopting  the  same 
original  means  to  arrive  at  them.  Polytheism,  rep- 
resenting the  gods  in  human  shape,  which  thus  came 
to  be  idealized,  greatly  aided  in  raising  the  plastic 
arts  in  Greece  to  that  eminent  pitch  of  excellence, 
in  which  we  behold  when  walking  through  the  Vati- 
can. Let  us,  at  present,  reap  the  fruits,  without 
passing  through  the  same  religious  mazes.  Abso- 
lutism aided  greatly  in  effecting  that  general  plan  ol 
education,  which  we  behold  in  its  vast  results,  in 
Prussia ;  let  us  take  its  best  fruits,  without  going 
tl^rough  the  same  political  process.  France  has 
done  so. 

No  one  can  study  the  constitution  of  the  United 
States,  without  perceiving  how  powerful  an  influence 
the  principles  of  the  Petition  of  Right  and  the  Bill 
of  Rights, — which,  with  the  Magna  Charta,  form 
the  bible  of  the  English  constitution,  as  Chatham 
said — exercised  in  producing  that  memorable  instru- 
ment. It  was  right  that  the  framers  paid  this  regard 
t)0  those  great  acts,  for  the  age  which  produced  them 
must  be  considered,  as  to  some  points  of  constitu- 
tional development,  classical. 

Hampden  brought  one  of  the  most  momentous 
points  in  all  constitutional  history  to  an  issue,  and 
wagered  his  property  and  all  for  thirty  shillings  six 
20* 


234  H  E  RMENEUTI  CS. 

pence,  and  his  trial  for  the  ship-money  must  be 
considered  as  a  more  important  chapter  in  British 
history,  than  some  whole  reigns.  Let  us  take  him 
as  good  authority,  how  important  in  the  higher  poli- 
tics the  principle  is,  no  matter  how  insignificant  its 
direct  operation  at  the  moment  may  be.  Political; 
like  moral  importance,  depends  upon  the  principle, 
not  the  value  at  issue.  Judas  was  not  the  better  for 
taking  but  thirty  pieces  of  silver. 

The  debates  of  the  framers  of  the  constitution  of 
the  United  States,  on  this  instrument,  are  valuable 
authorities,  for,  in  several  respects,  their  time  was  a 
classical  age  in  the  history  of  our  constitution. 

A  period  may  be  classical  as  to  commercial  law, 
but  not  in  other  respects. 

Here  it  may  be  mentioned,  that  authorities  may 
become  very  strong  in  an  indirect  way,  namely,  if 
we  find  that  certain  principles  are  acknowledged, 
even  though  the  person,  country,  or  period  to  which 
it  belongs,  are  hostile  to  the  subject  matter  in  gen- 
eral, so  that  their  statement  is  to  be  considered  as 
one  of  the  last  points  of  truth,  which  even  they 
could  not  deny.  If  we  find  a  principle  of  British 
liberty  acknowledged  even  by  a  Henry  VHL,  with- 
out his  having  had  a  momentary  and  direct  advan- 
tage in  view,  it  is  a  strong  authority  in  favor  of  it. 
If  we  find  that  even  in  China,  the  government  of 
which    is    perfect    absoluiism.  thoretically   founded 


CHAPTER     VIII  . S  ECTION     IX.       235 

upon  parental  authority  and  filial  obligation,  the 
maxim  is  acknowledged,  that  '  it  is  equally  criminal 
in  the  emperor  and  the  subject  to  violate  the  laws,' 
it  is  strong  authority  in  showing  that  the  law  should 
be  superior  to  every  individual  will. 

IX.  What  motive  prompted  him,  1  The  neces- 
sity of  carefully  attending  to  this  question,  has  been 
shown,  in  section  vii.  of  this  chapter,  but  it  is  im- 
portant to  add  a  few  remarks. 

In  citing  authorities,  it  is  but  too  often  forgotten, 
that  individuals,  as  well  as  periods,  however  distin- 
guished for  certain  principles  or  courses  of  action, 
have  their  phases,  to  which  we  must  direct  discrim- 
inate attention,  lest  we  be  misled  in  a  A^ery  disas- 
trous manner.  Lord  Coke  is  very  staunch  authority 
on  many  points,  but  not  when,  in  4  Inst.  p.  65,  he 
advocates  the  star-chamber  in  round  terms,  and  calls 
it  '  the  most  honorable  court  in  the  christian  world, 
the  parliament  excepted.'  Coke,  when  he  drew  up 
the  petition  of  right,  was  in  a  very  difterent  phase 
from  the  one  he  appears  in  when  prosecuting  Essex 
or  Raleigh,  or  when  he  endeavored  to  leestablish 
himself  in  court  favor  by  marrying  his  daughter  to  a 
brother  of  Buckingham.  Ijord  Bacon  is  a  very  ex- 
cellent authority  on  some  points,  but  not  when  wil- 
ling to  rack  Peccham,  which  he  knew  was  against 
law,  or  when  he  shamelessly  attacked  his  benefactor 


236  HERMENEUTICS. 

Essex,  or  when  he  makes  a  distinction  between  be- 
traying justice  for  bribes,  and  merely  promoting  jus- 
tice for  bribes  by  dispatching  cases.  Chief  Justice 
Hale  is  a  very  excellent  authority  on.  some  points, 
but  not  as  to  the  justice  and  expediency  of  trying 
and  punishing  witches. 

To  be  brief,  nothing  is  more  important  in  law, 
politics,  history,  bellelettres,  or  any  branch  whatever, 
in  which  we  acknowledge  authorities — and  more  or 
less  we  must  acknowledge  them  in  all — than  clearly 
to  present  to  our  minds  the  peculiar  provinces  in 
which  we  admit  them,  and  then  only  to  admit  them 
if  no  particular  and  sufficient  reason  obliges  us  to 
exclude  them.  On  the  other  hand,  if  we  are  fully 
convinced  that  a  period,  or  individual,  is  classical,  in 
the  forementioned  meaning  of  the  term,  on  some 
certain  points,  it  is  not  sufficient  to  disregard  them 
merely  because  we  cannot  at  once  see  their  reasons. 
We  must  have  specific  reasons  to  discard  them  ;  for 
the  idea  that  they  are  classical,  is  that  then  there 
existed  peculiarly  favorable  circumstances  to  decide 
the  point,  or  to  form  their  judgment,  which  we  can- 
not at  will  reproduce.  And  in  decisions  on  all 
important  matters,  much  depends  upon  a  certain 
instinciive  feeling,  not  derived  from  any  course  of 
reasoning,  an  inclination  of  our  mind  one  way  or 
the  other,  in  nicely  balanced  case.a,  not  from  whim, 
but  in  consequence  of  long  experience,  and  the 
effect  of  a  thousand  details  on  our  mind,  which  de- 


CHAPTER     VIII  . S  KCTION     IX.  237 

tails,  although  properly  affecting  a  sound  mind,  can 
nevertheless  not  be  strictly  summed  up.  That  ex- 
pression, '  depend  upon  it,  it  will  turn  out  so  or  so,' 
is  very  frequently  used  by  those  who  have  no  reason 
in  their  vacant  minds  to  assign  for  their  opinion,  yet 
it  is  also  of  great  importance  if  pronounced  by  men 
who  do  have  much  experience  and  a  sound  mind. 
Almost  every  council  of  war  affords  instances  of  tiiis 
kind.  The  great  general  very  often  knows  that  a 
manoeuvre  will  turn  out  so  or  so,  but,  in  many  cases, 
he  cannot  prove  it  mathematically.  A  man  like 
Pitt  acquires  a  tact  in  government  measures,  and 
even  in  matters  of  law  and  right,  which  are  very 
nearly  balanced,  so  much  so,  that  those  who  have 
not  a  long  experience  in  these  matters,  cannot  come 
to  a  conclusion,  the  tact  of  a  Marshal,  an  instinct,  if 
the  word  be  preferred,  may  choose  the  right  side. 
I  repeat  it,  this  tact  or  instinct  is  not  depending  upon 
arbitrary  preference,  or  whimsical  choice — if  so,  it 
is  totally  to  be  abhorred,  but  it  is  the  effect  of  long 
experience  in  many  detailed  cases,  of  practice,  upon 
a  mind  originally  of  peculiar  fitness  for  the  respec- 
tive branch  in  which  the  important  case  arises. 

If  we  find  that  Grecian  architects  always  orna- 
ment their  architrave  with  eighteen  drops,  we  may 
depend  upon  it  that  their  unequalled  sense  of  the 
beautiful  induced  them  to  adopt  this  number,  and  its 
distribution  in  three  rows,  as   the    only   ones  which 


238  HERMENEUTICS. 

harmonized  with  the  whole  character  of  the  fabric, 
and,  unless  we  discover  that  there  were  reasons  for 
adopting  this  number  which  do  no  longer  exist,  we 
would  act  presumptuously  in  deviating  from  it,  if  we 
adopt  otherwise  their  v^'hole  style. 

Laws  are,  in  a  certain  respect,  authorities.  They 
have  been  adopted  for  some  reason  or  other,  and  the 
rule  just  stated  applies  to  them.  It  is  not  sufficient 
that  we  do  not  see  at  once  their  use,  to  abolish  them, 
we  must  see  their  positive  defects  over-balancing 
their  good,  or  that  it  be  possible  to  obtain  the  same 
good  by  other  means,  without  incurring  the  same 
disadvantages,  before  we  alter  them.  Otherwise 
each  individual  constitutes  himself  a  judge  in  all 
matters,  as  being  wise  and  expert  in  all  branches, 
which  is  impossible. 

X.  What  internal  evidence  has  the  authority  f 
That  we  ought  not  to  disregard  this  point  any  more 
in  the  criticism  of  authorities  in  law  and  politics, 
than  in  history  or  any  branch  whatever,  is  sufficiently 
clear.  If  an  opinion  from  the  very  highest  and 
most  respected  source  should  bear  evidence,  in  it- 
self, that  it  was  given  upon  faulty  principles,  we  are 
bound,  of  course,  to  discard  it  at  once,  for  instance, 
Hale  on  witch  trials,  as  already  mentioned.  For 
this  reason,  among  so  many  others,  all  equally  strong, 
it  is  necessary  that  we  should  apply  to  authorities, 


CHAPTER     Vin  . S  E  C  T  I  O  N     XI.       239 

what  was  found  so  necessary  a  principle  in  prece- 
dents, that  each  case  must  necessarily  be  taken  with 
all  its  adjuncts.  It  is  necessary  to  understand  their 
very  language,  for  otherwise  we  cannot  give  to  the 
words  their  full  meaning,  and  for  this  reason,  again, 
authorities  must  be  taken  with  the  more  caution,  the 
more  remote  they  are  from  us,  unless  they  come 
from  a  classical  age,  and  we  do  not  live  in  one  re- 
specting the  point  at  issue.  '  The  modern  reports, 
and  the  latest  of  the  modern,  are  the  most  useful, 
because  they  contain  the  last,  and  it  is  to  be  presum- 
ed, the  most  correct  exposition  of  the  law,'  says 
Chancellor  Kent.  It  might  be  added,  because  they 
relate  to  cases  applying  to  the  same  circumstances 
and  conditions  with  our  own  ;  they  speak  the  same 
language  with  ourselves. 

XI.  Of  what  extent  is  the  authority  1  That 
this  is  a  question  of  the  highest  moment  in  politics 
and  law,  appears  at  once,  if  we  consider  that  both 
are  matters  of  experience,  not  indeed  of  expediency 
— I  hope  I  shall  not  be  so  radically  misunderstood — 
but  of  experience  that  is  of  sound  rules  derived  by 
reflecting  minds,  from  the  operation  of  those  means 
to  which  men  have  resorted  in  applying  the  princi- 
ples of  right  and  justice  to  existing  cases,  or  those 
measures  which  have  most  promoted  their  develop- 
ment or  security.     If  we  see  that  the  plan  of  divid- 


240  HER  MENEU  TICS. 

ing  the  legislative  department  into  two  branches,  or 
chambers,  is  almost  universally  adopted  by  the 
constitutional  nations  of  our  race,  and  that  the  more 
constitutional  law  becomes  understood,  the  more  it 
is  cherished,  it  affords  good  authority  for  adopting  it, 
even  if  the  people  have  not  yet  had  a  chance  to  try 
it,  or  cannot  precisely  yet  see  the  admirable  opera- 
tion of  this  principle,  far  more  important  in  so  called 
popular  governments  than  even  in  others,  and  the 
Belgians  acted  right  in  adopting  it,  whatever  even  a 
Franklin  may  have  said  to  the  contrary.  If  the 
uidependence  of  the  judiciary  is  daily  more  and 
more  acknowledged  by  constitutional  nations,  it  forms 
good  authority  in  favor  of  it.  Here,  as  in  all  cases, 
we  must  be  convinced,  of  course,  that  others  act  on 
the  same  primary  principles  which  we  may  have 
acknowledged  as  essentially  important.  Else  our 
rule  might  be  made  to  work  in  favor  of  persecuting 
heretics,  whipping  soldiers,  disallowing  counsel  to 
criniinally  indicted  persons,  leaving  the  mass  of  the 
people  without  schools,  imprisoning  accused  and 
sentenced  people  pell-mell.  We  must  be  convinced 
that  those  who  have  adopted  the  measure  in  ques- 
tion, act  with  us  on  the  same  principles,  or  on  prin- 
ciples we  acknowledge  as  good,  and  that  with  them 
the  measure  is  neither  the  consequence  of  chance 
nor  the  effect  of  sinister  motives,  but  carefully 
adopted  or  developed  on  those  principles. 


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